HomeMy WebLinkAbout2000 05 08 Regular I Wyman Fields Foundation
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City Manager Department
May 8, 2000
Add-On Regular Item "I"
Page 10f2
COMMISSION AGENDA
ADD-ON
ITEM I
Consent
Informational
Public Hearin s
Re ular X
May 8, 2000
Meeting
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Mgr. / Dept.
Authorization
REQUEST: City Manager requesting the Commission to authorize the City Manager to
execute second mortgage closing documents for Wyman Fields Foundation.
On June 28, 1999 the Commission authorized a contract with Wyman Fields Foundation to
complete Phase I of the four-plex rental to ownership conversion project. Phase I includes 52
units consisting of 20 units on Rhoden Lane and 32 units in Kristi Ann Court at $782,000.
The closing on the first mortgage with Peoples First Community Bank occurred on April 3,
2000.
The contract provides that the city may at its discretion hold a second mortgage on the units for
which the loan is applied for purposes of securing the city's loan.
The city has chosen to utilize the second mortgage loan and is prepared to close on Wednesday,
May 10,2000.
The contract with Wyman Fields provides the following funds to Wyman Fields.
Project Delivery Fees $ 87,000
(Administration, Due Diligence, etc.)
Rehabilitation Loan $782.071
. TOTAL $869.071
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City Manager Department
May 8, 2000
Add-On Regular Item "I"
Page 2 of2
FUNDING:
The source of funding of the project is the 1999 Revenue Improvements Bond. The closing cost
of the second mortgage is the responsibility of Wyman Fields.
RECOMMENDATION:
It is recommended that the Commission authorize the City Manager to execute second mortgage
closing documents related to the $782,071 housing rehabilitation loan to Wyman Fields
Foundation.
ATTACHMENT: Closing Documents
COMMISSION ACTION:
LA W OFFICES
AMARI & THERIAC, P .A.
Attorneys and Counselors At LllW
Richard S. Amari
NicllOlus B. Bangos'"
Kolm Bennett
Brlldly Roger Bettin, 8-:.
Anthony A. Garganp.,e +
Mitchell S. GOldmllll
J. Wesley Howze
Matthew J. Mon,aghan
Mark S. Peter~
David M. Presnick
alllJies R. Steinberg
James S. Theriac, III
Reply To: Cocoa P.O. Box
Mariner Square
96 Willard Street, Suite 302
P.O. Box 1807
Cocoa, Florida 32923-1807
Telephone (321) 639-1320
Fax (321) 639-6690
Imperial PlszlI
Suite 8104
6769 N. Wickham Road
Melbourne, Florida 32940
Telephone (321) 259-6611
Fax (321) 259-6624
"'Admitted AL, FL
+Bourd Certified City, County, & Local Government Law
May 4,2000
Mr. Ron McLemore
The City of Winter Springs, Florida
1126 E. State Road 434
Winter Springs, Florida 32708
Re: Wyman Fields Loan Transaction
Dear Mr. McLemore:
Pursuant to our telephone conference enclosed are copies of the draft documents including
the Note, Mortgage, an!l Construction Loan Agreement. As you will note, these documents are
slibstantially complete inasmuch as they would require only minor modifications for execution,
including the insertion of the date of closing, and therefore, are in a form for you to place before
the council for approval.
Enclosed also for your review is a copy of the Title Commitment from LandAmerica. As'
you will note from the title commitment it provides for the termination of the various Notices of
Commencement that were recorded in conjunction with the closing of the first mortgage with
Peoples First Community Banle As we discussed, the fact that the Notice of Commencement is
recorded prior to our mortgage would cause mechanics liens arising thereunder to have priority
against the lien of our mortgage. As part of our closing, we require that Wyman Fields terminate
those Notices of Commencem~nt which would begin to toll the ninety (90) day period for the filing
of said liens.
Certainly we will record new notices of commencement as part of our loan package,
subsequent to our mortgage, and therefore any mechanics liens arising under those notices of
commencement would be subordinate to our mortgage.
While we will require Wyman fields and the contractor to execute an indemnity bond in
favor of the title compa;,y; our policy wi:! nonetheless be subject to any materialmen's liens which
would arise within ninety days follmv,ng the recording of the Notice of termination.
Mr. Ron McLemore
The City of Winter Springs
Page Two.
May 4, 2000
As we discussed the best way to avoid the exceptions to title would be to wait a period of
ninety (90) days prior to the disbursement of any of the loan proceeds. Of course, if this is
unacceptable to the City (inasmuch as the City agrees to assume this risk) then I would suggest that
we hold a substantial amount of the proceeds until the ninety day period has passed (retainage) so
that there will be remaining funds available for the payment of any outstanding mechanics liens.
Additionally, I had previously advised you to obtain a Certificate of Insurance indicating
that the City was an additional insured under the various policies. Please forward a copy to me
at your earliest convenience. We should have this in the file prior to closing.
After you have had the opportunity to review the foregoing, if you should have any
questions, please do not hesitate to contact me.
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KB/tjj
Encls.
PROMISSORY NOTE
$782,071.00
May _, 2000
Winter Springs, Florida
FOR VALUE RECEIVED, the undersigned, WYMAN FIELDS FOUNDATION, 1Ne.,
a Florida non-profit corporation (hereinafter referred to as "Maker"), promises to pay to the order
of THE CITY OF WINTER SPRINGS, FLORIDA, a municipal corporation (hereinafter
referred to as "Lender") at its offices at 1126 E. State Road 434, Winter Springs, Florida 32708, or
such other place as the holder hereof may from time to time designate in writing, the principal sum
of SEVEN HUNDRED EIGHTY TWO THOUSAND SEVENTY ONE AND NO/lOO
DOLLARS ($782,071.00), or so much thereof as may have been disbursed, with interest thereon
from the date or dates of disbursement of the aforesaid principal sum as hereafter provided, to be paid
in lawful money of the United States of America, which shall be legal tender in payment of all debts
and dues, public and private, at the time of payment as follows:
Construction Loan Period
The "Construction Loan Period" shall commence on the date hereof and continue until all
construction, reconstruction, rehabilitation and improvements financed by this loan as evidenced
hereby are completed in accordance with the Construction Loan Agreement of even date herewith
(the "Construction Loan Agreement"), which date shall be on or before May , 2002 (the
"Construction Loan Period Maturity Date"). During the Construction Loan Period, no regularly
scheduled payments shall be due and payable, provided, however, that at any time during the
Construction Loan Period that the Maker shall sell any of the rehabilitated units, a principal reduction
payment shall be due and payable as follows:
A. $10,015.00 repayment for each residential unit sold on Rhoda Lane, which consists
of a principal reduction payment of $9,915.00 and a premium of $1 00.00.
B. $18,425.00 repayment for each residential unit sold on Kristi Ann Court, which
consists ofa principal reduction payment of$18,243.00 and a premium of$182.00.
This Note shall mature and the principal sum hereof or so much as may have been advanced
together with the accrued and unpaid interest thereon shall become due and payable on the
Construction Loan Period Maturity Date, unless the term of this Note is extended as otherwise
provided herein.
THE PROPER FLORIDA DOCUMENTARY STAMP TAX HAS BEEN PAID ON
THlS NOTE AND THE PROPER STAMPS HAVE BEEN PAID WITH RESPECT TO THE
MORTGAGE SECURING SAME.
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Notwithstanding anything in this Note to the contrary, provided this Note is not then in
default; and provided all construction and improvements financed by the loan as evidenced hereby
are completed in accordance with the Construction Loan Agreement on or before the Construction
Loan Period Maturity Date; then the Permanent Loan Period (as hereinafter defined) shall commence
and the term of this Note shall be extended through the Maturity Date (as hereinafter defined) (the
"Permanent Loan Period").
Permanent Loan Period
Provided this Note is extended as hereinabove set forth, the "Permanent Loan Period" shall
commence on the first day after the last day of the Construction Loan Period, and continue until the
Maturity Date (as hereinafter defined). During the Permanent Loan Period, Maker promises to pay
to Lender the then entire unpaid principal balance hereunder as follows:
Commencing on June ~ 2002 and continuing on the _ day of each succeeding month
thereafter until the Maturity Date (as hereinafter defined), monthly payments of principal and interest
shall be due and payable. This Note shall mature on May , 2007 (the "Maturity Date") and the
principal sum hereof or so much as may have been advanced together with accrued and unpaid
interest thereon shall become due and payable. Interest will be charged on unpaid principal until the
full amount of principal has been paid in full. The initial principal and interest monthly payment due
on the Permanent Loan Period shall be calculated by amortizing the outstanding principal balance
over a thirty (30) year term at an interest rate equal to three percent (3%) per annum.
Interest on this Note shall begin to accrue and be computed from the commencement of the
Permanent Loan Period at the rate of 3 percent (3%) per annum, on the basis of a 360-day year for
the actual number of days outstanding. Payment shall be applied first to accrued and unpaid interest,
and the balance, if any, to the principal.
This Note is secured by a Mortgage and Security Agreement (the "Mortgage") of even date
herewith encumbering real estate and property therein described and duly recorded among the public
records of Seminole County, Florida, the terms and conditions of which are incorporated herein by
reference.
Maker may make prepayment(s) of principal hereunder at any time and from time to time
without premium or penalty.
It is agreed hereby that (a) ifany payment of the principal sum, or any installment thereof, or
any interest thereon, or any payment of any sum under the Mortgage or the other loan documents is
not made as above provided or (b) if default is made in the performance of or compliance with any
of the covenants and conditions of the Mortgage, Construction Loan Agreement or the other loan
documents or (c) in the event default is made in the performance of or compliance with any of the
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covenants and conditions of any security agreement now or hereafter in effect securing payment of
this Note or (d) if Lender deems itself insecure or (e) upon any default in the payment of any sum due
by Maker or any guarantor hereof or any entity affiliated with Maker to Lender under any other
promissory note, security instrument or other written obligation of any kind now existing or hereafter
created or (f) upon the occurrence of any default in any mortgage inferior or superior to the lien of
the Mortgage which shall not be cured within the applicable grace period, if any or (g) upon the
insolvency, bankruptcy or dissolution of Maker or any guarantor hereof; then, in any or all such
events, the entire amount of principal of this Note with all interest then accrued, shall, at the option
of the holder of this Note and without notice (Maker hereby expressly waives notice of such default)
become and be immediately due and collectible, time being of the essence of this Note. If this Note
shall not be paid at maturity or according to the tenor thereof and strictly as above provided, it may
be placed in the hands of an attorney at law for collection, and in that event, each party liable for the
payment thereof, as maker, endorser, guarantor, or othelWise, hereby agrees to pay the holder hereof
in addition to the sums above stated, costs and reasonable attorneys' fees which shall include costs
and attorneys' fees at the trial level and on appeal, together with all costs incurred. After maturity
or default, this Note shall bear interest at the highest rate permitted under then applicable law.
This Note shall be cross-collateralized and cross-defaulted with any other loans that Maker
or any entity affiliated with Maker to Lender under any promissory note, security instrument or other
written obligation, of any kind, now existing or hereinafter created. A default in any loan shall
constitute a default of all such loans authorizing Lender to declare all or any part of the indebtednes$
immediately due and payable and the collateral for each separate loan shall serve as collateral for all
loans.
Notwithstanding whether Lender has exercised its right hereinabove to accelerate payment
under this Note as hereinabove provided, in the event any required payment on this Note is not
received by Lender within 10 days after such payment is due, Maker shall pay Lender a late charge
of 5% of the payment not so received, the parties agreeing that such charge is a fair and reasonable
charge for the late payment and shall not be deemed a penalty. As to this Note and the Mortgage and
any other instruments securing the indebtedness, Maker, endorsers and guarantors severally waive
all applicable exemption rights, whether under the State Constitution, homestead laws or otherwise,
and also severally waive valuation and appraisement, presentment, protest and demand, notice of
protest, demand and dishonor and nonpayment of this Note, and expressly agree that the Maturity
Date of this Note, or any payment hereunder, may be extended from time to time without in any way
affecting the liability of Maker, endorsers or guarantors.
Nothing herein contained, nor in any instrument or transaction related hereto, shall be
construed or operate so as to require Maker, or any person liable for the payment of the loan made
pursuant to this Note, to pay interest in an amount or at a rate greater than the highest rate
permissible under applicable law. Should any interest or other charges paid by Maker, or any parties
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liable for the payment of the loan made pursuant to this Note, result in the computation or earning
of interest in excess of the highest rate pennissible under applicable law, then any and all such excess
shall be and the same is hereby waived by the holder hereof, and all such excess shall be automatically
credited against and in reduction of the principal balance, and any portion of such excess which
exceeds the principal balance shall be paid by the holder hereof to Maker and any parties liable for
the payment of the loan made pursuant to this Note, it being the intent of the parties hereto that under
no circumstances shall Maker, or any parties liable for the payment of the loan hereunder, be required
to pay interest in excess of the highest rate permissible under applicable law.
This Note is to be construed according to the laws of the State of Florida and the United
States of America.
Maker acknowledges and agrees that to the fullest extent allowed by law, the wages, salary,
commission income, and all other disposable earnings of Maker are subject to attachment and/or
garnishment to satisfy Maker's obligations hereunder. Notwithstanding the foregoing, in no event
shall the amount attached or garnished exceed the amount allowed under the Consumer Credit
Protection Act, 15 U.S.C. 1673, et sec.
MAKER HEREBY KNOWINGLY, VOLUNT ARlL Y AND INTENTIONALLY W AlVES THE
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE
MORTGAGE AND ANY DOCUMENT EXECUTED IN CONJUNCTION THEREWITH, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF OR BY MAKER OR LENDER.
IN WITNESS WHEREOF, Maker has caused this Note to be duly executed under seal on
the day and year first above written.
WYMAN FIELDS FOUNDATION, INe.,
a Florida non-profit corporation
By:
ANTHONY PERRONE, President
>;0-
PREP ARED BY AND RETURN TO:
Kohn Bennett, Esquire
96 Willard Street, Suite 302
Cocoa, Florida 32922
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (the "Mortgage") dated May
, 2000, between WYMAN FIELDS FOUNDATION, INC., a Florida non-profit
corporation, as mortgagor and debtor (hereinafter called "Mortgagor"), and THE CITY OF
WINTER SPRINGS, FLORIDA, a Florida municipal corporation, as mortgagee and secured
party (hereinafter called "Mortgagee");
WITNESSETH:
WHEREAS, Mortgagor is justly indebted to Mortgagee in the principal sum of SEVEN
HUNDRED EIGHTY TWO THOUSAND SEVENTY ONE AND NO/tOO DOLLARS
($782,071.00), as evidenced by a certain promissory note (the "Note") of even date herewith,
executed by Mortgagor and delivered to Mortgagee, payable according to the terms therein provided,
and by reference being made a part hereof to the same extent as though set out in full herein,
providing inter alia for a maturity date of May , 2007, or such earlier date as provided in the
Note.
NOW TillS INDENTURE WITNESSETH, to secure the performance and observance by
Mortgagor of all the covenants and conditions in the Note and in this Mortgage, and in order to
charge the properties, interests and rights hereinafter described with such payment, performance and
observance, and for and in consideration of the sum of $1 0.00 paid by Mortgagee to Mortgagor on
or before the delivery of this Mortgage, and for other valuable considerations, the receipt of which
is hereby acknowledged, Mortgagor does hereby grant, bargain, sell, alien, remise, release, convey,
assign, transfer, mortgage, hypothecate, pledge, deliver, set over, warrant and confirm unto
Mortgagee, its successors and assigns forever:
THE MORTGAGED PROPERTY
BEING that certain piece, parcel or tract of land in which the Mortgagor has a fee simple
interest situate in the County of Seminole and State of Florida, more particularly described in Exhibit
"A" attached hereto and made a part hereof (hereinafter called the "Land").
TOGETHER WITH all buildings, structures and improvements of every nature whatsoever
now or hereafter situated on the Land, and all fixtures, machinery, equipment, attachments,
appliances, furniture, vehicles and other personal property of every nature whatsoever now or
hereafter owned by Mortgagor and located in, on, or used or intended to be used in connection with
or with the operation of the Land, buildings, structures or other improvements, including all
extensions, additions, improvements, betterments, renewals, and replacements to any of the
foregoing; and all of the right, title and interest of Mortgagor in any such personal property or fixtures
subject to a conditional sales contract, chattel mortgage or similar lien or claim together with the
benefit of any deposits or payments now or hereafter made by Mortgagor on its behalf;
TOGETHER WITH all easements, rights of way, strips and gores ofland, streets, ways,
alleys, passages, sewer right, water, water courses, water rights and powers, and all estates, rights,
titles, interest, privileges, liberties, tenements, hereditaments and appurtenances whatsoever, in any
way belonging, relating or appertaining to any of the property hereinabove described, or which
hereafter shall in any way belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Mortgagor, and the reversion and reversions, remainder and remainders, rents, issues,
profits thereof, and all the estate, right, title, interest, property, possession, claim and demand
whatsoever, at law as well as in equity, of Mortgagor of, in and to the same, including, but not limited
to, all judgments, payments, awards of damages and settlements hereafter made and resulting from
condemnation proceedings or the taking of the "Mortgaged Property" (as hereinafter defined) or any
part thereof under the power of eminent domain, the alteration of the grade of any street, or for any
damage whether caused by such taking or otherwise to the Mortgaged Property or any part thereof,
or to any appurtenant thereto, and all proceeds of any sales or other dispositions of the Mortgaged
Property or any part thereof;
TOGETHER WITH all rents, royalties, issues, profits, revenue, income and other benefits
from the Mortgaged Property to be applied against the indebtedness secured hereby, provided
however, that permission is hereby given to Mortgagor so long as no default has occurred hereunder,
to collect, receive, take, use and enjoy such rents, royalties, issues, profits, revenue, income, licenses,
foreclosures, concessions and other benefits as they become due and payable, but not in advance
thereof The foregoing assignment shall be fully operative without any further action on the part of
either party and, specifically, Mortgagee shall be entitled, at its option upon the occurrence of a
default hereunder, to all rents, royalties, issues, profits, revenue, in come and other benefits from the
Mortgaged Property, whether or not Mortgagee takes possession of the Mortgaged Property. Upon
any such notice of default hereunder, the permission hereby given to Mortgagor to collect such rents,
royalties, issues, profits, revenue, income and other benefits from the Mortgaged Property shall
terminate and such permission shall not be reinstated upon a cure of the default without Mortgagee's
specific consent. Exercise of rights under this paragraph, and the application of any such rents,
royalties, issues, profits, revenue, income or other benefits to such indebtedness, 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;
TOGETHER WITH all right, title and interest of Mortgagor in and to any and all leases,
subleases, permits, licenses, franchises or certificates covering the property or any portion thereof,
now or hereafter on or affecting the Mortgaged Property, together with all security therefor and all
monies payable thereunder, including, without limitation, all cash or security deposits, advance rentals
and deposits or payments of similar nature, subject, however, to the conditional permission
hereinabove given to Mortgagor to collect the rentals under such leases, provided that the existence.
or exercise of such right of Mortgagor shall not operate to subordinate this assignment to any
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subsequent assignment, in whole or in part, by Mortgagor, and any such subsequent assignment by
Mortgagor shall be subject to the rights of secured party hereunder. The foregoing assignment of any
lease shall not be deemed to impose upon Mortgagee any of the obligations or duties of Mortgagor
provided in any such lease, and Mortgagor agrees to perform fully all obligations of the lessor under
all such leases. Upon Mortgagee's request, Mortgagor agrees to send to Mortgagee a list of all leases
covered by the foregoing assignment and as any such lease shall expire or terminate or as any new
lease shall be made, Mortgagor shall so notify Mortgagee in order that at all times Mortgagee shall
have a current list of all leases affecting the Mortgaged Property. Mortgagee shall have the right, at
any time and from time to time, to notify any lessee of the rights of Mortgagee as provided by this
paragraph. From time to time, upon request of Mortgagee, Mortgagor shall specifically assign to
Mortgagee as additional security hereunder, by an assignment in writing in form approved by
Mortgagee, all right, title and interest of Mortgagor in and to any and all leases now or hereafter on
or affecting the Mortgaged Property, together with all security therefor and all monies payable
thereunder, subject to the conditional permission hereinabove given to Mortgagor to collect the
rentals under any such lease. Mortgagor also shall execute and deliver to Mortgagee any notification,
financing statement, or other document required by Mortgagee to perfect the foregoing assignment
as to any such lease;
TOGETHER WITH all monies escrowed for taxes, insurance or other charges in any way
belonging, relating or appertaining to any of the Land herein described or any part thereof.
TOGETHER WITH a security interest in (i) all property, tools, equipment, machinery,
goods and fixtures affixed to or located on the Mortgaged Property, which, to the fullest extent
permitted by law, shall be deemed fixtures and a part of the real property, (ii) all articles of personal
property and all materials delivered to the Mortgaged Property for the use and operation of said
property or for use in any construction being conducted thereon, and owned by Mortgagor; (iii) all
contract rights, including, without limitation, agreements and contracts of sale, construction
contracts, service contracts, advertising contracts, purchase orders, equipment leases, all rights arising
under any performance or payment bonds, and all other contract rights associated with the Mortgaged
Property; (iv) all general intangibles, actions and rights of action, all deposits, prepaid expenses,
permits, licenses, including all rights to insurance proceeds, surveys, architectural and engineering
plans, drawings and specifications, (v) all right, title and interest of Mortgagor in all patents, service
marks, copyrights, tradenames, designs, and trademarks, now or hereafter used in connection, or in
connection with the use of, any of the property described herein, (vi) the proceeds of any permanent
loan commitment now existing or hereafter executed by Mortgagor, and (vii) all proceeds, products,
replacements, additions, substitutions, renewals and accessions of any of the foregoing. Mortgagor
(Debtor) hereby grants to Mortgagee (Secured Party) a security interest in all fixtures, rights in action
and personal property described herein.
This Mortgage is a self-operative security agreement with respect to personal property, but
Mortgagor agrees to execute and deliver on demand such other security agreements, financing
statements and other instruments as Mortgagee may request in order to perfect its security interest
or to impose the lien hereof more specifically upon any of such property. Without limiting the
foregoing, Mortgagor hereby irrevocably appoints Mortgagee attorney-in-fact for Mortgagor to
execute, deliver, and file such instruments for and on behalf of Mortgagor, and Mortgagor shall pay
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the costs of any such filing.
The Land, together with any and all of the aforedescribed additional property and rights, now
or hereafter acquired by Mortgagor, has herebefore been and shall sometimes hereinafter be, referred
to as the "Mortgaged Property."
TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto Mortgagee,
its successors and assigns to its own proper uses and benefit forever, subject, however, to the terms
and conditions herein:
PROVIDED, HOWEVER, that these presents are upon the condition that, if Mortgagor
shall payor cause to be paid to Mortgagee the principal and interest payable in respect of the Note,
at the times and in the manner stipulated therein and herein, all without any deduction or credit for
taxes or other similar charges paid by Mortgagor, and shall keep, perfonn and observe all and singular
the covenants and promises in the Note, and any renewal, extension or modification thereof, and in
this Mortgage expressed to be kept, performed and observed by and on the part of Mortgagor, all
without fraud or delay then this Mortgage, and all the properties, interest and rights hereby granted,
bargained, sold, aliened, remised, released, conveyed, assigned, transferred, mortgaged, hypothecated,
pledged, delivered, set over, warranted and confirmed, shall cease, terminate and be void, but shall
otherwise remain in full force and effect.
AND, Mortgagor covenants and agrees with Mortgagee as follows:
ARTICLE 1
PARTICULAR COVENANTS OF MORTGAGOR
1.1 Performance of Note and Mortgage. Mortgagor will perform, observe and comply with all
the provisions hereof, of the Note secured hereby, and of the provisions of any instrument evidencing
or securing additional indebtedness of Mortgagor now existing or hereafter executed in connection
with the Mortgaged Property and will promptly pay to Mortgagee the sum of money expressed in the
Note with interest thereon and all other sums required to be paid by Mortgagor pursuant to the
provisions of this Mortgage and any instrument evidencing or securing additional indebtedness of
Mortgagor now existing or hereafter executed in connection with the Mortgaged Property on the
days when payment shall become due, all without deduction or credit for taxes or other similar
charges paid by Mortgagor, time being of the essence for such payments.
1.2 Warranty of Title. Mortgagor covenants, represents and warrants that it is indefeasibly seized
of the Land in fee simple; that this Mortgage constitutes a valid second lien on the Mortgaged
Property; that it has good and absolute title to all existing personal property hereby mortgaged; that
it has full power and lawful right to convey and mortgage the same in the manner and fonn aforesaid;
and that the Mortgaged Property is free.from all liens and encumbrances except taxes for the current
year and except for that certain first mortgage in favor of Peoples First Community Bank dated April
~ 2000 securing the original principal sum of Two Million Five Hundred Ninety Five Thousand
Four Hundred Ten and no/1 00 Dollars ($2,595,410.00). Mortgagor hereby makes further assurance
to perfect fee simple title to the Land in Mortgagee as may be required. Mortgagor does hereby fully
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warrant the title to the Mortgaged Property against the lawful claims of all persons whomsoever.
1.3 Taxes, Liens and Utility Charges.
a. Mortgagor covenants and agrees to deliver to Mortgagee, on or before December
3 I of each year, tax receipts evidencing the payment of all lawfully imposed taxes upon the
Mortgaged Property for the then current calendar year; to deliver to Mortgagee receipts evidencing
the payment of all liens, levies, fines and assessments for public improvements within 30 days after
same shall become due and payable; and to payor discharge no later than 30 days prior to
delinquency, any and all governmental levies that may be made on the Mortgaged Property, on this
Mortgage or the Note or in any other way resulting from the mortgage indebtedness secured by this
Mortgage.
b. Mortgagor shall not permit any mechanics', laborer's, statutory or other lien to
be created or to remain outstanding upon any of the Mortgaged Property and shall cause same to be
released and discharged, or transferred to bond as permitted by law, within 10 days after the lien is
filed of record.
c. If required by Mortgagee, Mortgagor shall pay to Mortgagee on the date of each
regular installment of interest as required by the Note secured hereby, until the Note is fully paid, an
amount equal to 1/12 or such proportionate share of the yearly taxes and assessments as estimated
by Mortgagee to be sufficient to enable Mortgagee to pay at least 30 days before they become due,
all taxes, assessments and other similar charges against Mortgaged Property or ariy part thereof.
Such added payment 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 in respect thereof Upon demand of
Mortgagee, Mortgagor agrees to deliver to Mortgagee such additional monies as are required to
make up any deficiencies in the amounts necessary to enable Mortgagee to pay such taxes,
assessments or similar charges. In the event of a default by Mortgagor in the performance of any of
the terms, covenants and conditions in this Mortgage or the Note secured hereby, Mortgagee may
apply to the reduction of the principal sum, in such manner as the Mortgagee shall determine, any
amount under this Paragraph 1.3 ( c) of Article 1 remaining to Mortgagor's credit.
d. Mortgagor will pay when due and will not suffer to remain outstanding, any
charges for utilities, whether public or private, with respect to the Mortgaged Property.
e. In the event of the passage of any state, federal, municipal or other governmental
, law, order, rule or regulation, subsequent to the date hereof, in any manner changing or modifying
the laws now in force governing the taxation of mortgages or debts secured by mortgages, or the
manner of collecting taxes so as to adversely affect the Mortgagee, at the option of the Mortgagee,
the entire balance of the principal sum secured by this Mortgage and all interest accrued thereon shall
without notice become immediately due and payable unless Mortgagor shall pay such tax within 10
days after written notice thereof from Mortgagee.
1.4 No Tax Credits. The Mortgagor will not claim or demand or be entitled to receive any
credit or credits on the principal or interest payable under the terms of the Note or on any other sums
secured hereby, for so much of the taxes, assessments or similar impositions assessed against the
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Mortgaged Property or any part thereof, as are applicable to the indebtedness secured hereby or to
the Mortgagee's interest in the Mortgaged Property. No deduction shall be claimed from the taxable
value of the Mortgaged Property or any part thereof by reason of the Note or this Mortgage.
1.5 Insurance.
a. Mortgagor shall at its sole expense obtain for delivery to, and maintain for the
benefit of, Mortgagee during the life of the Mortgage, comprehensive general liability insurance in
such amounts and for such periods as Mortgagee may require. This insurance shall be non-
contributing and not excess to any other insurance available to Mortgagee. Mortgagor shall pay
promptly, when due, any premiums on the insurance policies and renewals.
b. Mortgagor shall keep the Mortgaged Property and the improvements now existing
or hereafter erected on the Mortgaged Property insured against loss by fire and other hazards,
casualties and conting(';ncies, including, but not limited to, flood and builder's risk completed value
coverage, in such amounts and for such periods as may be required by Mortgagee, and to pay
promptly when due, any premiums on such insurance policies or renewals.
c. All insurance shall be camed on companies approved by Mortgagee as to financial
standing according to such guidelines as may be adopted from time to time by Mortgagee, and the
policies and renewals thereof shall be held by Mortgagee and shall have attached thereto loss payable
clauses in favor of and in form acceptable to Mortgagee. All insurance policies shall require that
written notice be sent to Mortgagee at least 30 days prior to the effective date of the expiration,
termination or amendment thereto. At least 30 days prior to the termination or expiration date of all
such policies, renewals thereof satisfactory to Mortgagee shall be delivered to Mortgagee.
Mortgagor shall deliver to the Mortgagee receipts evidencing the payment of all such insurance
policies and renewals. The delivery of the insurance policies shall constitute an assignment as further
security of all unearned premiums. In the event of loss, Mortgagor will give immediate notice by mail
to Mortgagee and Mortgagee may make proof of loss if not made promptly by Mortgagor, and each
insurance company concerned is hereby authorized and directed to make payment for such loss
directly to Mortgagee instead of to Mortgagor and Mortgagee jointly, and the insurance proceeds or
any part thereof may be applied by Mortgagee at its option either to the reduction of the indebtedness
hereby secured or to the restoration or repair of the property damage. If Mortgagee elects to apply
the insurance proceeds to reduce the outstanding indebtedness hereunder, Mortgagor shall remain
responsible for repairing and/or maintaining the Mortgaged Property. Additionally, if Mortgagee
applies the insurance proceeds to the reduction of the indebtedness secured hereby, the proceeds shall
be applied to payments of principal in the inverse order of due dates, and Mortgagor shall remain
responsible for making payments of principal and interest to Mortgagee on the dates and in the
manner required under the Note. In the event offoreclosure of this Mortgage or other transfer oftitle
to the Mortgaged Property in extinguishment of the indebtedness secured hereby, all right, title and
interest of Mortgagor in and to any insurance policies then in force shall pass to the purchaser or
grantee.
d. If required by Mortgagee, Mortgagor shall pay to Mortgagee on the date of each
regular installment of interest as required by the Note secured hereby, until the Note is fully paid, an
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amount equal to 1/12 or such proportionate share of the yearly premium for insurance as shall enable
Mortgagee to pay for the insurance premiums when due. Such added payments shall not be, nor be
deemed to be, trust funds, but may be commingled with the general funds of the Mortgagee, and no
interest shall be payable with respect thereof. Upon demand of Mortgagee, Mortgagor agrees to
deliver to the Mortgagee such additional monies as are necessary to make up any deficiencies in the
amounts necessary to enable Mortgagee to pay such insurance premiums when due.
1.6 Condemnation. If all or any part 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), the entire indebtedness secured hereby shall at the option of Mortgagee become
immediately due and payable. Mortgagee shall be entitled to all compensation, awards, and any other
payments of relief therefor and is hereby authorized, at its option to commence, appear in and
prosecute, in its own or Mortgagor's name, any action or proceeding relating to any condemnation.
In the event of such an appearance by Mortgagee, Mortgagor agrees to pay the costs and reasonable
attorneys' fees incurred by Mortgagee. Mortgagee shall be entitled to settle or compromise in its
own or Mortgagor's name any claim in connection with any action or claim relating to condemnation.
All compensation, awards, damages, claims, rights of action and proceeds and the right thereto are
hereby assigned by Mortgagor to Mortgagee who, after deducting therefrom all its expenses,
including attorneys' fees, may release any monies so received by it without affecting the lien of this
Mortgage or may apply the same in such manner as Mortgagee shall determine, to the reduction of
the sums secured hereby, and to any prepayment charge herein provided, and any balance of such
monies then remaining shall be paid to Mortgagor. Mortgagor agrees to execute such further
assignments of any compensations, awards, damages, claims, rights of action and proceeds as
Mortgagee may require.
1.7 Care of Property.
a. Mortgagor shall preserve, operate and maintain the Mortgaged Property in good
condition and repair. Mortgagor shall not remove or demolish any building presently on or hereafter
existing on the Land without the written consent of Mortgagee. Mortgagor shall not permit, commit
or suffer any waste, impairment or deterioration of the Mortgage Property or of any part thereof, and
will not take any action with will increase the risk of fire or other hazard to the Mortgaged Property
or to any part hereof
b. Mortgagee is hereby authorized to enter upon and to inspect the Mortgaged
Property at any time during normal business hours during the term of this Mortgage.
c. Mortgagor will comply promptly with all present and future laws, ordinances, rules
and regulations of any governmental authority affecting the Mortgaged Property or any part thereof
d. If all or any part of the Mortgaged Property shall be damaged by fire or other
casualty, Mortgagor will give immediate written notice thereof to Mortgagee and shall promptly
restore the Mortgaged Property to the equivalent of its original condition regardless of whether or
not there shall be any insurance proceeds therefor. If a part of the Mortgaged Property shall be
physically damaged through condemnation, Mortgagor will promptly restore, repair or alter the
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remaining property in a manner satisfactory to Mortgagee.
1.8 Further Assurances. Mortgagor will make, execute and deliver to Mortgagee and, where
appropriate, shall cause to be recorded and/or filed and from time to time thereafter to be re-recorded
and/or re-filed at such time and in such offices and places as shall be deemed desirable by Mortgagee,
and any and all such further mortgages, mortgage modifications, instruments of further assurance,
certificates and other documents as may, in the opinion of Mortgagee, be necessary or desirable in
order to effectuate, complete, enlarge or perfect, or to continue and preserve:
a The obligation of Mortgagor under this Mortgage and the Note secured hereby,
and
b. The lien ofthis Mortgage as a valid first lien upon all of the Mortgaged Property,
whether now owned or hereafter acquired by Mortgagor.
Upon any failure by Mortgagor to do so, Mortgagee may make, execute, record, file,
re-record and/or re-file any and all such mortgages, instruments, certificates and documents for and
in the name of Mortgagor, and Mortgagor hereby irrevocably appoints Mortgagee the agent and
attorney-in-fact of Mortgagor to do so.
1.9 After Acquired Property. Except for equipment leased by Mortgagor from unrelated third
parties upon Mortgagee's prior approval, the lien oftrus Mortgage will automatically attach, without
further act, to all after acquired property of any nature whatsoever attached to, located in, on, or used
in the operation of the Mortgaged Property or any part thereof, and Mortgagor covenants and
warrants that it will have good and absolute title to all of the aforesaid after acquired property free
of any lien or encumbrance.
1.10 Leases Affecting Mortgaged Property. Mortgagor will comply with and observe its
obligations as landlord and tenant under all leases affecting the Mortgaged Property or any part
thereof. Mortgagor will furnish Mortgagee with copies of all leases hereafter created on the
Mortgaged Property, and all leases hereafter entered into will be in form and substance subject to the
approval of Mortgagee. Mortgagee specifically reserves the right to approve all proposed leases as
to financial capabilities. Unless otherwise herein specifically provided, all leases shall be inferior and
subordinate in all respects to the lien of this Mortgage, and the terms of each lease shall so provide.
Mortgagor will not, without the express written consent of Mortgagee, modify, surrender, assign or
terminate, either orally or in writing, any lease created upon the Mortgaged Property. Mortgagor will
not accept payment of rent more than one month in advance without the express written consent of
Mortgagee. If requested by Mortgagee, Mortgagor will specifically assign to Mortgagee as additional
security any and all such leases hereafter created, including, without limitation, all rents, royalties,
issues and profits of the premises from time to time accruing, the parties hereto acknowledging that
this Mortgage constitutes a general assignment of any and all such future leases.
1.11 Expenses. Mortgagor shall payor reimburse Mortgagee for all costs, charges, payments
and expenses, including reasonable attorneys' fees, including appellate proceedings, disbursements,
and costs of abstracts of title incurred or paid by Mortgagee on account of or in any action,
proceeding or dispute in which Mortgagee is made a party or appears as a party plaintiff or party
8
defendant because of the failure of Mortgagor promptly and fully to perform and comply with all
conditions and covenants ofthis Mortgage and the Note secured hereby, including, but not limited
to, the foreclosure of this Mortgage, condemnation of all or part of the Mortgaged Property, or any
action to protect the security thereof, or any default under the First Mortgage. All costs, charges and
expenses so incurred by Mortgagee shall become due and payable upon demand. The amounts so
paid or incurred by Mortgagee, together with interest thereon at the Default Rate as hereinafter
defined from the date incurred until paid by Mortgagor, shall be secured by the lien of this Mortgage.
1.12 Mortgagee's Performance of Defaults. If Mortgagor shall default in the payment of any
tax assessment, encumbrance or other imposition, in its obligation to furnish insurance hereunder or
in the performance or observance of any other covenant, condition or term in this Mortgage or in any
other instrument evidencing or securing additional indebtedness of Mortgagor now existing or
hereafter executed in connection with the Mortgaged Property, then Mortgagee may, at its option,
without waiving or affecting its option to foreclose or any other rights hereunder, perform or observe
the same, and all payments made or costs or expenses incurred by Mortgagee in connection therewith,
shall be secured hereby and shall be immediately repaid by Mortgagor to Mortgagee, upon demand,
with interest thereon at the Default Rate as hereinafter defined. Nothing contained herein shall be
construed as requiring Mortgagee to advance or expend monies for any purposes mentioned in this
paragraph. Mortgagee is hereby empowered to enter and to authorize others to enter upon the
Mortgaged Property or any part thereof for the purpose of performing or observing any such
defaulted covenant, condition or term, without thereby becoming liable to Mortgagor or any person
in possession holding under Mortgagor.
1.13 Books and Records. Mortgagor shall keep and maintain at the Mortgaged Property, at
all times, full, true and accurate books of accounts and records, adequate to reflect correctly the
results of the operation of the Mortgaged Property.
1.14 Estoppel Affidavits. Mortgagor, within 10 days after written request from Mortgagee,
shall furnish a written statement, duly acknowledged, setting forth the unpaid principal of, and interest
on, the Note and whether or not any offsets or defenses exist against such principal and interest.
1. 15 Waiver of Notice of Limitation of Indebtedness. Mortgagor hereby waives, on behalf
of itself and its successors and assigns, the right to file for recording a notice limiting the maximum
principal amount which may be secured by this Mortgage, as provided for in Florida Statutes,
697.04(1)(b), as may be amended from time to time.
1.16 Leases Covering Television Systems. Telephone Systems and Computer Systems.
a. No leases for television systems, telephone systems or computer systems
(collectively, the "Systems Leases") shall be executed by Mortgagor without Mortgagee's prior
written approval.
b. The Systems Leases shall: (i) provide that the lessors thereunder will give
Mortgagee written notice of any default by Mortgagor thereunder and an opportunity to cure such
default within a reasonable period of time following Mortgagee's receipt of written notice of the
occurrence thereof, (ii) provide that upon the occurrence of an Event of Default under this Mortgage,
9
the lessors thereunder will consent to Mortgagee succeeding to Mortgagor's interest therein upon
the same terms and conditions, without payment by Mortgagee of any sums due and owing by
Mortgagor under the Systems Leases prior to the date of such succession by Mortgagee and (iii)
otherwise be in form and substance acceptable to Mortgagee.
1.17 Maintenance of Organizational Documents. The Land Trust Agreement of Mortgagor
shall not be changed, modified, canceled or altered in any manner without the prior written consent
of Mortgagee.
ARTICLE 2
DEFAULTS
2.1 Event of Default. The term "Event of Default", wherever used in the Mortgage, shall
mean anyone or more of the following events:
a. Failure by Mortgagor to pay, as and when due and payable, any installment of
principal or interest due under the Note, or any deposits for taxes and assessments or insurance
premiums due hereunder, or any other sums to be paid by Mortgagor hereunder or under any other
instrument securing the Note or under any other instrument of indebtedness to which Mortgagor is
a party.
b. Failure by Mortgagor to duly keep, perform and observe any other covenant;
condition or agreement in the Note and this Mortgage between Mortgagor and Mortgagee dated even
date herewith, any other instrument securing the Note or any other instrument collateral to the Note
or executed in connection with the sums secured hereby.
c. Failure by Mortgagor to duly keep, perform and observe any other covenant,
condition or agreement contained in any instrument securing additional indebtedness of Mortgagor
now existing or hereafter executed in connection with the Mortgaged Property.
d. If Mortgagor, any beneficiary of Mortgagor or any endorser or guarantor of the
Note shall file a voluntary petition in bankruptcy or shall admit in writing its inability to pay its debts
as they mature or shall make an assignment of its debts as they mature or shall be adjudicated
bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, wage earner's plan, assignment for the benefit of creditors,
receivership, dissolution or similar relief under any present or future Federal Bankruptcy Act or any
other present or future applicable federal, state or other statute or law, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of Mortgagor or of all or any part
of the properties of Mortgagor, of any beneficiary of Mortgagor or of any guarantor or endorser of
the Note; or if within 30 days after commencement of any proceeding against Mortgagor, any
beneficiary of Mortgagor or any guarantor or endorser of the Note, seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, debtor relief or similar relief under
any present or future Federal Bankruptcy Act of any other present or future federal, state or other
statute or law, such proceeding shall not have been dismissed, or stayed on appeal; or if, within 30
days after the appointment, without the consent or acquiescence of Mortgagor, any beneficiary of
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Mortgagor or of any endorser or guarantor of the Note, of any trustee, receiver, or liquidator of
Mortgagor, any beneficiary of Mortgagor or any endorser or guarantor of the Note, or of all of any
portion of the Mortgaged Property, such appointment shall not have been vacated or stayed on appeal
or otherwise; or if within 10 days after the expiration of any such stay, such appointment shall not
have been vacated.
e. The entry by a court of last resort of a decision that an undertaking by the
Mortgagor as herein provided to pay taxes, assessments, levies, liabilities, obligations and
encumbrances is legally inoperative or cannot be enforced, or in the event of the passage of any law
changing in any way or respect the laws now in force for the taxation of mortgages or debts secured
thereby for any purpose or the manner of collection of any such taxes, so as to adversely affect this
Mortgage or the debt secured hereby, provided that Mortgagor has not paid such taxes within 15
days of notice thereof.
f. The occurrence of any default in any mortgage superior or inferior to the
Mortgage, or the institution of foreclosure proceedings on any mortgage superior or inferior to this
Mortgage, or if any foreclosure proceeding on any lien of any kind, provided that such proceedings
are not terminated within 10 days of their institution.
g. Any modification of any mortgage superior or inferior to this Mortgage, or any
increase in the amount outstanding under any mortgage superior or inferior to this Mortgage, whether
pursuant to a future advance agreement or otherwise, or any waiver of any principal or any interest
payments on any note or mortgage superior to this Mortgage, or release of any guarantor or
modification of any guaranty affecting any superior mortgage.
h. Any breach of any warranty or untruth of any representation of Mortgagor
contained in the Note, this Mortgage, the "Guaranty" (as hereinafter defined) or any other instrument
securing the Note.
'. i. The filing by Mortgagor for recording of a notice limiting the maximum principal
amount which may be secured by this Mortgage, pursuant to Florida Statutes, 697.04(1)(b), as may
be amended from time to time.
j. Failure by any "Guarantor" (as hereinafter defined) of the Note to perform any
covenant, term, or condition of the Guaranty.
k. The existence of any material adverse change in the financial condition of
Mortgagor or any Guarantor.
l. The transfer, conveyance, sale, pledge, mortgage, or lien of or upon the
Mortgaged Property or of any interest in Mortgagor without having first obtained the prior written
consent of Mortgagee.
2.2 Acceleration of Maturity. If an Event of Default shall have occurred, Mortgagee may
declare the entire unpaid principal amount of the Note then unpaid, and the interest accrued thereon,
to be due and payable immediately, and upon such declaration such principal and interest shall
11
forthwith become and be due and payable, as fully and to the same effect as if the date of such
declaration were the date originally specified for the maturity of the unpaid balance of the Note.
2.3 Mortgagee's Right to Enter and Take Possession. Operate and Apply Income.
a. If an Event of Default shall have occurred, Mortgagor, upon demand of
Mortgagee, shall forthwith surrender to Mortgagee the actual possession of the Mortgaged Property,
and to the extent permitted by law Mortgagee may enter and take possession of all the Mortgaged
Property, and may exclude Mortgagor and its agents and employees wholly therefrom, and may have
joint access with Mortgagor to the books, papers and accounts of Mortgagor.
b. If Mortgagor shall, for any reason, fail to surrender or deliver any such Mortgaged
Property or any part thereof after such demand by Mortgagee, Mortgagee may obtain a judgment or
decree conferring on Mortgagee the right to immediate possession or requiring Mortgagor to deliver
immediate possession of all or part of such Mortgaged Property to Mortgagee, to the entry of which
judgment or decree Mortgagor hereby specifically consents.
c. Mortgagor will pay to Mortgagee, upon demand, all expenses of obtaining such
judgment or decree and reasonable compensation to Mortgagee, its attorneys and agents and all such
expenses and compensation shall, until paid, be secured by the lien of this Mortgage.
d. Upon every such entering upon or taking of possession, Mortgagee may hold,
store, use, operate, manage and control the Mortgaged Property and conduct the business thereof,
and, from time to time:
(1) make all necessary maintenance, repairs, renewals, replacements, additions,
betterments and improvements thereto and thereon, and purchase or otherwise acquire additional
fixtures, personalty and other property, as determined by Mortgagee in its sole and absolute
discretion;
(2) insure or keep the Mortgaged Property insured and exercise all the rights
and powers of Mortgagor in its name or otherwise, with respect to the same;
(3) manage and operate the Mortgaged Property and exercise all the rights and
powers of Mortgagor in its name or otherwise, with respect to the same; and
(4) enter into any and all agreements with respect to the exercise by others of
any of the powers herein granted Mortgagee, all as Mortgagee from time to time may determine to
be to its best advantage; and Mortgagee may collect and receive all the income, revenues, rents, issues
and profits of the same, including those past due as well as those accruing thereafter, and after
deducting
(i) all expenses of taking, holding, managing and operating the
Mortgaged Property (including reasonable compensation for the services of
all persons employed for such purposes);
12
(ii) the cost of all such maintenance, repairs, renewals, replacements,
additions, betterments, improvements and purchases and acquisitions;
(iii) the cost of such insurance;
(iv) such taxes, assessments and other charges prior to the lien of this
Mortgage as Mortgagee may determine to pay;
(v) other proper charges upon the Mortgaged Property or any part
thereof; and
(vi) the reasonable compensation expenses, and disbursements of the
attorneys and agents of Mortgagee
shall apply the remainder of the monies so received by Mortgagee, first to the payment of accrued
interest; second to the payment of any required tax deposit, insurance deposit or expenses required
by Mortgagee; and third toward the outstanding principal balance on the Note.
2.4 Mortgagee's Power of Enforcement. If an Event of Default shall have occurred
Mortgagee may, either with or without entry or taking possession as hereinabove provided or
otherwise, proceed by suit or suits at law or in equity or by any other appropriate proceeding or
remedy (a) to enforce payment of the Note or the performance of any term hereof or any other right,
(b) to foreclose this Mortgage and to sell, as an entirety or in separate lots or parcels, the Mortgaged
Property, under the judgment or decree of a court or courts of competent jurisdiction, and ( c) to
pursue any other remedy available to it, all as Mortgagee shall deem most effectual for such purposes.
Mortgagee shall take action either by such proceedings or by the exercise of its powers with respect
to entry or taking possession, as Mortgagee may determine. Mortgagee shall have all the rights and
remedies in addition to those specified herein of a secured party under the Uniform Commercial
Code.
2.5 Leases. Mortgagee, at Mortgagee's option, is authorized to foreclose this Mortgage, and
the failure to make any tenants of the Mortgaged Property parties defendant to any such foreclosure
proceedings and to foreclose their rights will not be, nor be asserted to be by Mortgagor, a defense
to any proceedings instituted by Mortgagee to collect the sums secured hereby, or any deficiency
remaining unpaid after the foreclosure sale of the Mortgaged Property.
2.6 Principal and Interest Become Due on Foreclosure. Upon commencement of suit for
foreclosure of this Mortgage, the unpaid principal of the Note, if not previously declared due, and the
interest accrued thereon, shall at once become and be immediately due and payable.
2.7 Purchase by Mortgagee. Upon any such foreclosure sale, pursuant to judicial proceedings,
Mortgagee may bid for and purchase the Mortgaged Property and, upon compliance with the terms
of sale, may hold, retain and possess and dispose of such property in its own absolute right, without
further accountability.
2.8 Application of Indebtedness Toward Purchase Price. Upon any such foreclosure sale,
13
pursuant to judicial proceedings, Mortgagee may, if permitted by law, after allowing for the
proportion of the total purchase price required to be paid in cash for the costs and expenses of the
sale, compensation and other charges, in paying the purchase price, apply to the purchase price, in
lieu of cash any portion of or all sums due to Mortgagee under the Note and this Mortgage.
2.9 Waiver of Appraisement, Valuation, Stay. Extension and Redemption Laws. Mortgagor
agrees to the full extent permitted by law, that in case of a default on its part hereunder, neither
Mortgagor nor anyone claiming through or under it shall or will set up, claim or seek to take
advantage of any appraisement, valuation, stay, extension or redemption laws now or hereafter in
force, in order to prevent or hinder the enforcement or foreclosure of this Mortgage, or the absolute
sale of the property hereby conveyed, or the final and absolute putting into possession thereof,
immediately after such sale, of the purchasers thereat, and Mortgagor, for itself and all who may at
any time claim through or under it, hereby waives to the full extent that it may lawfully do so, the
benefit of all such laws, and any and all right to have the assets comprised in the security intended to
be created hereby marshalled upon any foreclosure of the lien hereof and agrees that Mortgagee or
any court having jurisdiction to foreclosure such lien may sell the Mortgaged Property as an entirety.
2.10 Receiver. If an Event of Default shall occur and then upon the filing of a bill in equity or
other commencement of judicial proceedings to enforce the rights of Mortgagee, Mortgagee to the
extent permitted by law and without regard to the value or occupancy of the security shall be entitled
as a matter of right to the appointment of a receiver to enter upon and take possession of the
Mortgaged Property. The receiver shall collect all rents, revenues, issues, income, products and
profits thereof, pending such proceedings and apply the same as the court may direct. Mortgagor
hereby specifically waives the right to object to the appointment of a receiver as described herein and
hereby expressly consents that such appointment shall be made as Mortgagee's absolute right and that
such appointment may be made without notice to Mortgagor. The receiver shall have all rights and
powers permitted under the laws of Florida and such other powers as the court making such
appointment shall confer. The expenses, including receiver's fees, reasonable attorneys' fees, costs
and agent's compensation, incurred pursuant to the powers herein contained shall be secured by this
Mortgage. The right to enter and take possession of, to manage and operate, the Mortgaged
Property, to collect the rents, issues and profits thereof, whether by a receiver or otherwise, shall be
cumulative to any other right or remedy hereunder or afforded by law, and may be exercised
concurrent therewith or independently thereof. Mortgagee shall be liable to account only for such
rents, issues and profits actually received by Mortgagee, whether received pursuant to this Paragraph
2.10 or Paragraph 2.3 above. Notwithstanding the appointment of any receiver, trustee or other
custodian, Mortgagee shall be entitled as pledgee to the possession and control of any cash, or other
instruments at the time held by, or payable or deliverable under the terms of this Mortgage to
Mortgagee.
2.11 Suits to Protect the Mortgaged Property. The Mortgagee shall have power (a) to institute
and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the
Mortgaged Property by any acts which may be unlawful or any violation of the Mortgage, (b) to
preserve or protect its interest in the Mortgaged Property and in the income, revenues, rents and
profits arising therefrom and (c) to restrain the enforcement of or compliance with any legislation or
other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the
14
enforcement of or compliance with, such enactment, rule or order would impair the security
hereunder or be prejudicial to the interest of Mortgagee.
2.12 Proofs of Claim. In the case of any receivership, insolvency, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceedings affecting Mortgagor, its
creditors, or its property, 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 the claims of
Mortgagee allowed in such proceedings for the entire amount due and payable by Mortgagor under
this Mortgage at the date of the institution of such proceedings and for any additional amount which
may become due and payable by Mortgagor hereunder after such date.
2.13 Acceleration; Application of Monies by Mortgagee.
a. If default shall be made in the payment of any amount due under the Mortgage or
the Note secured hereby, then, upon demand of Mortgagee, Mortgagor shall pay to Mortgagee the
entire amount due and payable under the Note. If Mortgagor shall fail to pay the same forthwith
upon such demand, Mortgagee shall be entitled to sue for and to recover judgment for the whole
amount so due and unpaid, together with costs, which shall include the reasonable compensation,
expenses and disbursements of Mortgagee's agents and attorneys either before, after or during the
pendency of any proceedings for the enforcement of this Mortgage, including appellate proceedings.
The right of Mortgagee to recover suc.h judgment shall not be affected by any taking, possession or
foreclosure sale hereunder, or by the exercise of any other right, power or remedy for the
enforcement of the terms of this Mortgage, or the foreclosure of the lien hereof.
b. In case of a foreclosure sale of any of the Mortgaged Property and of the
application of the proceeds of sale to the payment of the debt hereby secured, Mortgagee shall be
entitled to enforce payment of and to receive all amounts then remaining due and unpaid upon the
Note, and Mortgagee shall be entitled to recover judgment for any portion of the debt remaining
unpaid, with interest.
c. Mortgagor agrees, to the full extent that it may lawfully so agree, that no recovery
of any such judgment by Mortgagee and no attachment or levy of any execution upon any such
judgment upon any of the Mortgaged Property or upon any other property shall in any manner or to
any extent 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.
d. Any monies thus collected by Mortgagee or received by Mortgagee under this
Paragraph 2.13 shall be applied as follows:
First to the payment of the reasonable attorneys' fees
and expenses incurred by Mortgagee, its agents and
attorneys, including, but not limited to, taxes paid,
insurance premiums paid, receivers fees, etc.; and
Second, toward payment of the amounts due and
15
unpaid upon the Note.
2.14 Delay or Omission No Waiver. No delay or omission of Mortgagee or of any holder of
the Note to exercise any right, power or remedy accruing upon any default shall exhaust or impair
any such right, power or remedy or shall be construed to be a waiver of any such default or
acquiescence therein; and every right, power and remedy given by this Mortgage to Mortgagee may
be exercised from time to time and as often as may be deemed expedient by Mortgagee.
2.15 No Waiver of One Default to Affect Another. No waiver of any default hereunder shall
extend to or shall affect any subsequent or any other then existing default or shall impair any rights,
powers or remedies consequent thereon. If Mortgagee (a) grants forbearance or an extension of time
for the payment of any sums secured hereby; (b) takes other or additional security for the payment
thereof; ( c) accepts full or partial payment of interest or principal due and payable under the Note
after the occurrence of an Event of Default; (d) waives or does not exercise any right granted herein
or in the Note; (e) releases any part of the Mortgaged Property from the Note or Mortgage; (f)
consents to the filing of any map, plat or replat thereof; (g) consents to the granting of any easement
thereon or (h) makes or consents to any agreement subordinating the lien hereof, any such act or
omission shall not release, discharge, modify, change or affect the original liability under the Note,
Mortgage or otherwise of Mortgagor or any subsequent purchaser of the Mortgaged Property or any
part thereof, or any maker, co-signer, endorser, surety or guarantor; nor shall any such act or
omission preclude Mortgagee from exercising any right, power or privilege herein granted or intended
to be granted in the event of any other default then made or of any subsequent default nor, except as
otherwise expressly provided in an instrument or instruments executed by Mortgagee, shall the lien
of this Mortgage be altered thereby. In the event of the sale or transfer by operation of law or
otherwise of all or any part of the Mortgaged Property, Mortgagee, without notice to any person or
corporation, is hereby authorized and empowered to deal with any such vendee or transferee with
reference to the Mortgaged Property or the indebtedness secured hereby, or with reference to any
of the terms or conditions hereof, as fully and to the same extent as it might deal with the original
parties hereto and without in any way releasing or discharging any of the liabilities or undertakings
hereunder.
2.16 Discontinuance of Proceedings; Position of Parties Restored. In case Mortgagee shall
have proceeded to enforce any right or remedy under this Mortgage by foreclosure, entry or
otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall
have been determined adverselyq to Mortgagee, then and in every such case, Mortgagor and
Mortgagee shall be restored to their former positions and rights hereunder, and all rights, powers and
remedies of Mortgagee shall continue as ifno such proceeding has been taken.
2.17 Remedies Cumulative. No right, power or remedy conferred upon or reserved to
Mortgagee by this Mortgage is intended to be exclusive of any other right, power or remedy but each
and every such right, power and remedy shall be cumulative and concurrent and shall be in addition
to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity
or by statute.
2.18 Subrogation. Mortgagee hereby is subrogated to the claims and liens of all parties
16
whose claims or liens are discharged or paid with the proceeds of the indebtedness secured by this
Mortgage.
2.19 Abstract. The abstract oftitle covering the Mortgaged Property shall belong to and
remain in the possession of Mortgagee during the lien of this Mortgage.
ARTICLE 3
MISCELLANEOUS PROVISIONS
3. 1 Successors and Assigns Included in Parties. Whenever in this Mortgage one of the
parties hereto is named or referred to, the successors and assigns of such party shall be included and
all covenants and agreements contained in this Mortgage by or on behalf of Mortgagor or by or on
behalf of Mortgagee, shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed or .not. \Vhenever the singular or plural number, masculine or feminine or
neuter gender is used herein, it shall equally include the other.
3.2 Notice.
a. Mortgagor. Any notice, demand or other instrument authorized by this Mortgage
to be served on or given to Mortgagor may be served on or given to Mortgagor, at the following
address:
Wyman Fields Foundation, Inc.
207 N. Moss Road, Suite 105
Winter Springs, FL 32708
With a copy to:
Peoples First Community Bank
2305 Highway 77
Panama City, FL 32405
or at such other address as may have been furnished in writing to Mortgagee by Mortgagor.
b Mortgagee. Any notice, demand or other instrument to be served on or given to
Mortgagee may be served on or given to Mortgagee at its offices located at the following address:
The City of Winter Springs
1126 E. State Road 434
Winter Springs, FL 32708
Attn: City Manager
with a copy to:
Anthony Garganese, Esquire
96 Willard Street, Suite 302
Cocoa, Florida 32922
17
or at such other address as may have been furnished in writing to Mortgagor by Mortgagee.
c. Notice shall be deemed given when hand delivered, properly receipted, or placed
in the United States mails, certified or registered, return receipt requested, postage prepaid, to the
above addresses.
3.3 Headings. The headings of the articles, sections, paragraphs and subdivisions of this
Mortgage are for convenience of reference only, and are not to be considered a part hereof, and shall
not limit or otherwise affect any of the terms hereof.
3.4 Invalid Provisions to Affect No Others. In case anyone or more of the covenants,
agreements, terms or provisions contained in this Mortgage or in the Note shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining covenants, agreements, terms or provisions
contained herein and in the Note shall not be affected, prejudiced or disturbed thereby in any manner.
3.5 Modifications. It is understood and agreed that Mortgagee may at any time, without
notice to any person, grant to Mortgagor any modification of any kind or nature whatsoever, or allow
any change or changes, substitution or substitutions or any of the property described in this Mortgage
or any other collateral which may be held by Mortgagee without in any manner affecting the liability
of Mortgagor, any endorsers or guarantors of the indebtedness hereby secured or any other person
for the payment of said indebtedness, together with interest and any other sums which may be due
and payable to Mortgagee, and also without in any manner affecting or impairing the lien of this
Mortgage upon the remainder of the Mortgaged Property and other collateral which is not changed
or substituted; and it is also understood and agreed that the Mortgagee may at any time, without
notice to any person, release any portion of the property described in this Mortgage or any other
collateral, or any portion of any other collateral which may be held as security for the payment of the
indebtedness hereby secured, either with or without any consideration of such release or releases,
without in any manner affecting the liability of Mortgagor, all endorsers or guarantors, if any, and all
other persons who are or shall be liable for the payment of said indebtedness, and without affecting,
disturbing or impairing in any manner whatsoever the validity and priority of the lien of this Mortgage
for the full amount of the indebtedness remaining unpaid, together with all interest and advances
which shall become payable, upon the entire remainder of the Mortgaged Property which is
unreleased, and without in any manner affecting or impairing to any extent whatsoever any and all
other collateral security which may be held by Mortgagee. It is distinctly understood and agreed by
Mortgagor and the Mortgagee that any release or releases may be made by Mortgagee without the
consent or approval of any other person or persons whomsoever.
3.6 Uniform Commercial Code. The parties agree that this Mortgage is a security agreement
under the Uniform Commercial Code for the purpose of creating a lien on the personal property and
fixtures described herein.
3.7 No Transfer or Encumbrance. It is understood and agreed by Mortgagor that as part of
the inducement to Mortgagee to make the loan evidenced by the Note, Mortgagee has considered and
relied on the credit worthiness and reliability of Mortgagor. Mortgagor covenants and agrees not to
sell, convey, transfer, lease, execute any management agreement, easement or other agreement
18
covering, or further encumber any interest in any part of the Mortgaged Property or Mortgagor, and
any such sale, conveyance, transfer, lease or encumbrance shall constitute an Event of Default
hereunder. A contract to deed or agreement for deed or assignment of beneficial interest in any land
trust or a transfer, conveyance or pledge of any interest, including, but not limited to, shares of stock
or any partnership interests in Mortgagor shall constitute a transfer pursuant to the provisions of this
paragraph. If any person should obtain an interest in all or any part of the Mortgaged Property,
pursuant to the execution or enforcement of any lien, security interest or other right, whether
superior, equal or subordinate to this Mortgage or the lien hereof, such event shall be deemed to be
a transfer by Mortgagor and an Event of Default hereunder.
3.8 Future Advances. This Mortgage is given to secure not only the existing indebtedness of
$782,071.00 of the Mortgagor to the Mortgagee evidenced by the Note secured hereby, but also such
future advances up to an additional $ N/ A as are made within 20 years from date hereof, plus
interest thereon, and any disbursements made by Mortgagee for the payment of taxes, insurance or
other liens on the property encumbered by this Mortgage, with interest on such disbursements, which
advances shall be secured hereby to the same extent as if such future advances were made this date.
The total amount of indebtedness secured hereby may increase or decrease from time to time. The
provisions of this paragraph shall not be construed to imply any obligation on Mortgagee to make any
future advances, it being the intention of the parties that any future advances shall be solely at the
discretion and option of the Mortgagee. Any reference to "Note" in this Mortgage shall be construed
to reference any future advances made pursuant to this paragraph.
3.9 Leasing Commissions. 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. 10 Time is of the Essence. It is specifically agreed that time is of the essence of this
Mortgage and that no waiver of any obligation hereunder or of the obligation secured hereby shall
at any time thereafter be held to be a waiver of the terms hereof or of the instrument secured hereby.
3.11 Attorneys' Fees and Expenses. Wherever provision is made herein for payment for
reasonable attorneys' or counsels' fees or expenses incurred by Mortgagee, said provision shall
include, but not be limited to, reasonable attorneys' or counsels' fees or expenses incurred in any and
all judicial, bankruptcy, reorganization, administrative, or other proceedings, including appellate
proceedings, whether such proceedings arise before or after entry of a final judgment.
3.12 Maximum Rate of Interest. Nothing herein contained, in the Note secured hereby or
any instrument or transaction related thereto, shall be construed or so operate as to require
Mortgagor, or any person liable for the payment of the loan made pursuant to the Note, to pay
interest in an amount or at a rate greater than the maximum allowed by law. Should any interest or
other charges in the nature of the interest paid by Mortgagor, or any parties liable for the payment
of the loan made pursuant to the Note, result in the computation or earning of interest in excess of
19
the maximum rate of interest allowed by applicable law, then any and all such excess shall be and the
same is hereby waived by the holder hereof, and all such excess shall be credited automatically against
and in reduction of the principal balance, and any portion of said excess which exceeds the principal
balance shall be paid by the holder hereof to Mortgagor, or any parties liable for the payment of the
loan made pursuant to the Note, it being the intent of parties hereto that under no circumstances shall
Mortgagor, or any parties liable for the payment of the loan hereunder, be required to pay interest
in excess of the maximum rate allowed by law.
3.13 Florida Contract. This Mortgage is made by Mortgagor and accepted by Mortgagee in
the State of Florida, with reference to the laws of such State, and shall be construed, interpreted,
enforced and governed by and in accordance with such laws (excluding the principles thereof
governing conflicts oflaw) and federal law, in the event (and only in the event) federal law preempts
State law.
3.14 [RESERVED]
3.15 [RESERVED]
3.16 Default Rate. The Default Rate of interest shall be applicable subsequent to an Event of
Default as defined in Paragraph 2.1 and where elsewhere provided for in this Mortgage. The Default
Rate shall be the maximum interest rate per annum permissible under Florida law or federal law in the
event federal law pre-empts Florida law or is otherwise applicable.
3.17 Attorney-in-Fact. Mortgagor hereby appoints Mortgagee or substitutes appointed by
rvlortgagee or its successors and assigns as Mortgagor's true and lawful attorney, for Mortgagor and
in Mortgagor's name to perform and do all and every act and thing whatsoever requisite and
necessary to be done under all contracts, licenses, leases and similar documents and agreements in
which Mortgagee has a security interest., upon an Event of Default hereunder. This appointment shall
be coupled with an interest and shall be non-cancelable except upon satisfaction of the indebtedness
secured hereby. Mortgagor hereby ratifies and confirms all that Mortgagee shalllawfuUy do or cause
to be done pursuant hereto.
3.18 Indemnification. Mortgagor shall protect, indemnify and hold Mortgagee harmless from
and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses
(including without limitation attorneys' fees and expenses) imposed upon or incurred by or asserted
against Mortgagee by reason of (a) ownership of this Mortgage, the Mortgaged Property or any
interest therein or receipt of any rents; (b) any accident, injury to or death of persons or loss of or
damage to property occurring in, on or about the Mortgaged Property or any part thereof; ( c) any
use, non-use or condition in, on or about the Mortgaged Property; (d) any failure on the part of
Mortgagor to perform or comply with any of the terms of this Mortgage; or ( e) performance of any
labor or services or the furnishing of any materials or other property in respect of the Mortgaged
Property or any part thereof All amounts payable to Mortgagee by reason of the application of this
paragraph shall become immediately due and payable and shall bear interest at the rate of the lesser
of (i) two percent above the interest tate specified in the Note, or (ii) the maximum interest rate
permitted by applicable law, from the date loss or damage is sustained by Mortgagee until paid. The
obligations of Mortgagor under this paragraph shall survive any termination or satisfaction of this
20
Mortgage.
3. 19 Hazardous Substances.
a. Mortgagor hereby represents that (i) neither Mortgagor nor any other person
within Mortgagor's knowledge, based upon reasonable investigation, has ever caused or permitted
any "Hazardous Substances" (hereinafter defined) to be placed, held, located or disposed on, under
or at the Mortgaged Property or any part thereof and neither the Mortgaged Property nor any part
thereof ever has been used (whether by the Mortgagor or by any other person) as a dump site or
storage site (whether permanent or temporary) for any Hazardous Substances, (ii) the current use and
occupancy of the Mortgaged Property comply with all Federal, state and local environmental laws,
statutes, ordinances, codes, rules, regulations, orders and decrees and (iii) Mortgagor has not
received any "Environmental Complaint" (hereinafter defined).
b. Mortgagor hereby agrees to indemnity Mortgagee and hold Mortgagee harmless
from and against any and all losses, liabilities, including strict liability, damages, injuries, expenses,
including reasonable attorneys' fees, claims for damage to the environment, claims for owed penalties,
costs of any settlement or judgment and claims of any and every kind whatsoever paid or incurred
and claims of any and every kind whatsoever paid, incurred or suffered by, or asserted against,
Mortgagee by any person or entity or governmental agency for, with respect to, or as a direct or
indirect result of, the presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission, discharging or release from, the Mortgaged Property of any Hazardous Substances
(including, without limitation, any losses, liabilities, including strict liability, damages, injuries,
expenses, including reasonable attorneys' fees, costs of any settlement or judgment or claims asserted
or arising under the Comprehensive Environmental Response, Compensation and Liability Act, any
so called federal, state or local "superfund" or "super lien" law, statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to or imposing liability, including strict liability,
substances or standards of conduct concerning any Hazardous Substances), regardless of whether or
not caused by, or within the control of Mortgagor.
c. For purposes of this Mortgage, "Hazardous Substances" shall have the meaning
ascribed in and shall include those substances listed in the Comprehensive Environmental Response,
Compensation and Liability Act, 42 US.c. S9601 et seq. and the regulations promulgated thereunder
(as amended from time to time) and includes oil and oil waste as those terms are defined in the Clean
Water Act, 33 US.C. ~ 1251 et seq. and the regulations promulgated thereunder (as amended from
time to time) and the Resource, Conservation and Recovery Act, 42 US.C. S6901 et seq., and shall
include any other elements or compounds which are contained in the list of hazardous substances
adopted by the United States Environmental Protection Agency (the "EP A") and the list of toxic
pollutant designated by Congress or the EP A or defined by any other Federal, state or local statute,
law, ordinance, code, rule, regulation, tJrder or decree regulating, relating to, or imposing liability or
standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material,
now existing or at any time hereafter in effect.
d. If Mortgagor receives any notice of (i) the happening of any event involving the
use, spill, release, leak, seepage, discharge or cleanup of any Hazardous Substances or (ii) any
21
complaint, inspection by any governmental agency which lists any noncompliance, order, citation or
notice with regard to air emissions, water discharges, or any other environmental, health or safety
matter affecting Mortgagor or the Mortgaged Property (an "Environmental Complaint") from any
person or entity (including without limitation the EP A) Mortgagor immediately shall notify
Mortgagee orally and in writing of such notice.
e. Mortgagee shall have the right but not the obligation and without limitation of
Mortgagee's rights under this Mortgage, to enter onto the Mortgaged Property or to take such other
actions as it deems necessary or advisable to clean up, remove, resolve, or minimize the impact of,
or otherwise deal with, any of such Hazardous Substances or Environmental Complaint following
receipt of any notice from any person or entity (including without limitation the EP A) asserting the
existence of any Hazardous Substances or an Environmental Complaint pertaining to the Mortgage
Property or any part thereof which, if true, could result in an order, suit, lien or other action against
Mortgagor and/or the Mortgaged Property and/or which, in the sole opinion of Mortgagee, could
jeopardize its security under this Mortgage. All reasonable costs and expenses incurred by
Mortgagee in the exercise of any such rights shall be secured by this Mortgage and shall be payable
by Mortgagor upon demand.
f. Mortgagee shall have the right, in its sole discretion, to require Mortgagor to
perform periodically (at Mortgagor's expense) an environmental audit and, if deemed necessary by
Mortgagee, an environmental risk assessment, each of which must be satisfactory to Mortgagee, of
the Mortgaged Property, hazardous waste management practices and/or hazardous waster disposal
sites used by Mortgagor. Each such audit and/or risk assessment must be prepared by an
environmental consultant satisfactory to Mortgagee. Should Mortgagor fail to perform any
environmental audit or risk assessment within 30 days of Mortgagee's written request, Mortgagee
shall have the right but not the obligation to retain an environmental consultant to perform such
environmental audit or risk assessment. All costs and expenses incurred by Mortgagee in the exercise
of such rights shall be secured by this Mortgage and shall be payable by Mortgagor upon demand or
charged to Mortgagor's obligations secured by this Mortgage at the discretion of Mortgagee.
ARTICLE 4
ADDITIONAL PROVISIONS
4.1 Cross Default. In the event that Mortgagor shall be in default with respect to this
Mortgage and the loan evidenced by the Note, then Mortgagor shall be deemed in default with
respect to all loans from Mortgagee to Mortgagor and any entity or company affiliated with
Mortgagor or Guarantor shall be in default with respect to any loan from Mortgagee to such entity
or company. In the event that Mortgagor or any Guarantor shall be in default with respect to any
loan from Mortgagee to Mortgagor or any Guarantor, then Mortgagor shall be deemed to be in
default with respect to this Mortgage and the loan evidenced by the Note. Additionally, a default
under the First Mortgage shall be deemed a default hereunder.
4.2. Cross Collaterization. The Loan shall secure not only the note secured hereby but shall
also stand as additional collateral for repayment of every note, liability and obligation of every kind
or nature now or hereafter in existence (herein called the "Other Obligations") now or hereafter held
22
by mortgagee or any of mortgagee's corporate affiliates and signed, co signed, guaranteed or endorsed
by any party who has signed, co signed, guaranteed or endorsed the Note secured hereby or this
Mortgage. Likewise, all property mortgaged, pledged and hypothecated as security for repayment
of any of the Other Obligations shall stand as additional collateral for repayment of the note secured
hereby and for performance of all obligations hereunder.
4.3. Waiver of Jury Trial. MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS MORTGAGE AND ANY DOCUMENT EXECUTED IN
CONJUNCTION THEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENT (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ORBYMORTGAGOR
OR MORTGAGEE.
4.4 Partial Releases. Mortgagee agrees to release from the lien of the Mortgage individual
units upon the sale thereof upon the following conditions:
a. There exists no event of default under the Note, Mortgage, Construction Loan
Agreement, or any other loan document executed in conjunction herewith;
b. Mortgagor has created the requisite homeowners association thereby creating the
necessary common property or cross easements; and
c. The payment of a release price in the following sum:
(1) $10,015.00 for each individual residential unit located on Rhoda Lane, or
(2) $18,425.00 for each individual residential unit located on Kristi Ann Court.
IN WITNESS WHEREOF, the undersigned have executed this instrument the day and year
first above written.
Signed, sealed and delivered
in the presence of:
MORTGAGOR:
WYMAN FIELDS FOUNDATION, INC.,
a Florida non-profit corporation
By:
ANTHONY PERRONE, President
Print Name:
Print Name:
23
STATE OF FLORIDA
COUNTY OF BREVARD
The foregoing instrument was acknowledged before me this day of May, 2000,
by ANTHONY PERRONE, President of WYMAN FIELDS FOUNDATION, INC., a Florida
non-profit corporation, who is personally known to me or who has produced
as identification.
NOTARY PUBLIC
My Commission Expires:
24
Prepared By and Return to:
KOHN BENNETT, ESQUlRE
96 Willard Street, Suite 302
Cocoa, Florida 32922
ASSIGNMENT OF LEASES. RENTS AND PROFITS
THIS ASSIGNMENT, made this day of May, 2000, by and between WYMAN FIELDS
FOUNDATION, INC., a Florida non-profit corporation, 207 N. Moss Road, Suite 105, Winter Springs, Florida
32708 ("Assignor"), and THE CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation,
1126 E. State Road 434, Winter Springs, Florida 32708 ("Assignee").
WITNESSETH:
WHEREAS, Assignor is indebted to Assignee in the principal sum of SEVEN HUNDRED EIGHTY TWO
THOUSAND SEVENTY ONE AND NO/tOO DOLLARS ($782,071.00), as evidenced by a Promissory Note of
even date herewith (the "Note"), secured by a Mortgage on certain real property described on Exhibit "A", attached
hereto (hereina fter the "Property").
NOW, THEREFORE, in consideration of the debt herein mentioned and for other valuable consideration,
the receipt and sufficiency of which is hereby acknowledged and to secure the full and punctual payment of the Note,
including any future or existing modification, extension or renewal thereof, and the interest and other sums thereon,
in the full and punctual performance of the covenants, terms, obligations and conditions contained herein, and other
instruments, documents and agreements required by Assignee which evidence, secure or otherwise relate to the
indebtedness hereby secured (including without limitation, any commitment, mortgage, construction loan agreement,
security agreement and assignments), together with any existing or future amendments, modifications, extensions
or renewals thereof (all of which are referred to herein collectively as "Loan Documents"), Assignor hereby grants,
conveys, transfers and assigns to Assignee all of the right, title and interest to Assignee of all existing and future
leases upon all or any part of the Property, together with any and all amendments, modifications, extensions,
renewals and replacements thereof and all guaranties of the lessees' obligations under said Leases (each of which
is referred to herein separately as the "Lease") and also together with the right (but not the obligation) to collect all
the rents, issues, profits and other sums.
Assignor warrants that it is the sole owner in fee simple of the property and that it is the owner of the entire
lessors' interest in the Lease; the Lease is valid and enforceable and has not been altered, modified or amended in
any manner whatsoever (except as previously disclosed in writing to the Assignee); that no party is in default under
any of the tenus, covenants, or conditions thereof; that the Lease and the rent reserved in the Lease have not been
previously assigned; and that no rent for any period subsequent to the date of this Assignment has been waived,
discounted, compromised or collected more than one (1) month in advance from the time that the same is due under
the terms of the Lease.
Assignor covenants that it will faithfully abide by, perfoml and discharge each and every obligation,
covenant and agreement of the Lease to be performed by Assignor; give prompt notice to Assignee of any notice
of default of the Lease received or given by Assignor, together with an accurate and complete copy of such notice
of default, enforce at the sole cost and expense of Assignor without terminating the Lease, the performance of each
and every obligation, covenant, and condition in agreement of the Lease; appear in and defend any action or
proceeding arising under the Lease; deliver to Assignee each Lease, all or any part of the Property which is entered
into subsequent hereto; properly maintain and account for any security deposits received under the Lease and deliver
said security deposits to Assignee at its request; and to execute and deliver at the request of Assignee all further
assurances and assignments to confirm or effectuate this Assignment as Assignee shall from time to time require.
The term of this Assignment shall be until the Note, Mortgage, and Loan Documents (or any extension or
renewal thereot) of even date herewith, made, executed, and delivered by the Assignor to the Assignee, shall have
been fully paid and satisfied, at which time this Assignment is to be fully satisfied, canceled, and released, and the
releasing of said Mortgage shall constitute a release hereof.
And the Assignor does hereby authorize and empower the said Assignee to collect the rents payable under
all of said Leases above referred to as they shall become due, and does hereby direct each and all of the tenants of
the aforesaid Property to pay such rents as may now be due, and does hereby pay such rents as may now be due or
shall become due to the said Assignee upon demand for payment thereof by the Assignee. It is understood and
agreed, however, that no such demand shall be made unless and until there has been a default in the payment of the
indebtedness secured by the Mortgage herein mentioned, or default in the payment of any other sum secured by said
Mortgage, or default in the performance of any of the covenants set forth in said Note or said Mortgage; and, until
such demand is made, the Assignor is authorized to collect, or continue collecting, said rents, but such privilege to
collect, or continue collecting, as aforesaid by the Assignor, shall not operate to permit the collection by the said
Assignor, their heirs, executors, administrators or assigns of (and the Assignor hereby covenants and agrees with
the Assignee that the Assignor will not collect, demand or receive) any installment of rent in advance of the date
prescribed in said Lease or Leases for the payment thereof.
The authority and power of the Assignee to collect said rents from said property, as set forth herein, may
be exercised and said rents collected with or without the taking of possession of said real property, or any part
thereof, and without the necessity of (but nothing herein contained shall be construed to prohibit the Assignee)
instituting foreclosure of its Mortgage, and an action upon its Note or an action upon this Assignment directly against
the tenants under the Leases assigned herewith.
And in furtherance of this Assignment, the Assignor does hereby additionally authorize and empower the
Assignee by its employees, agents, or representatives, at the option of the Assignee upon the occurrence of any
default, as aforesaid, to enter upon the aforesaid Property and to collect, in the name of the Assignor or in its own
name as Assignee, the rents accrued but unpaid and in arrears at the date of such default, as well as the rents
thereafter accruing and becoming payable during the period the Assignment is operative; and to this end, the
Assignor further agrees to cooperate and to assist the Assignee, its employees, agents or representatives, in all
reasonable ways with collection of said rents.
The Assignor does hereby authorize (but nothing herein shall be deemed to require or obligate) the Assignee
upon such entry, to take over and assume the management, operation and maintenance of said Property and to
perform all acts necessary and proper in its sole discretion, and to expend such sums as may be necessary in
connection therewith, including the authority to effect new leases or to make concessions to tenants; the Assignor
hereby releasing all claims against the Assignee arising out of such management, operation and maintenance,
excepting the liability of the Assignee to account as hereinafter set forth.
This Assignment is given as additional security for the performance of each and all of the obligations and
covenants of the Note and Mortgage above described (or any extension or renewal thereot).
The Assignee shall, after payment of all property charges and expenses, including reasonable compensation
2
to such agents, employees or representatives as shall be selected or employed, and over the accumulation of a
reasonable reserve to meet taxes, assessments, utility rents, and tires and liability insurance in requisite amounts,
credit the net amount of income received by it from the Property by virtue of this Assignment to any amount due
and owing to it by the Assignor under the terms of the said Note and Mortgage, but the manner of the application
of such net income and what items shall be credited shall be determined in the sole discretion of the Assignee.
It is further covenanted and agreed that the Assignor and its successors or assigns, shall have no right,
power, or authority to (the Assignor covenants and agrees with the Assignee that the Assignor shall not) lower the
rental mte on any rental unit to a rate which is lower than that existing on the date of this Assignment without first
obtaining the consent in writing of the Assignee to such alteration, modification, or amendment.
The provisions of this instrument shall be binding upon and shall inure to the benefit of the Assignor and
their legal representatives, successors, or assigns, and upon the Assignee, its successors and assigns.
Nothing herein contained shall be construed as making the Assignee a mortgagee in possession, nor shall
said Assignee be liable for laches, or failure to collect said rents, issues, profits, revenues, royalties, rights and
benefits, and it is understood that said Assignee is to account only for such sums as are actually collected.
The Assignor covenants and agrees with the Assignee that no tenant need determine whether or not a default
has occurred making this Assignment operative, but shall pay over the rent to the Assignee upon notice from it to
do so, and upon so doing, shall be relieved from liability therefor to Assignor in all respects.
IT IS UNDERSTOOD AND AGREED that neither the existence of this Assignment nor the exercise of its
privilege to collect said rents, issues, profits, revenues, royalties, rights and benefits hereunder shall be construed
as a waiver by the Assignee or its successors and assigns, of the right to enforce payment of the debt hereinabove
mentioned, in strict accordance with the terms and provisions of the Mortgage and Note for which this Assignment
is given as additional security.
This Assignment, together with the covenants and warranties herein contained, shall inure to the benefit
of Assignee and any subsequent holder of the Note, and shall be binding upon Assignor and Assignee's heirs,
successors, personal representatives and assigns and any subsequent owner of the Property. Assignee shall have the
right to assign the Assignee's right, title and interest in the Lease and rents, issues and profits of the Property, or
any portion thereof, through foreclosure or transfer in lieu thereof. After Assignee shall have been barred and
foreclosed of all right, title, interest, and equity of redemption in the Property, or any portion thereof, no assignee
of Assignee's interest in the Lease shall be liable to account to Assignee for the rents, issues, or profits.
All notices, requests, demands, and other communications provided for herein shall be in writing and shall
be deemed to have been given when sent by registered or certified United States mail, return receipt requested,
addressed to the appropriate party at its address set forth on the first page of this Assignment, or such other address
as shall be designated by such party by written notice to the other party as herein provided.
The invalidity of any provision of this Assignment as determined by a court of competent jurisdiction shall
in no way affect the validity of any other provision hereof.
If more than one person or entity is named as Assignee herein, this Assignment shall be binding upon all
such persons and entities jointly and severally.
This Assignment shall not be modified, amended, or otherwise changed, except in writing signed by the
parties hereto. -
3
This Assignment shall be governed by and construed in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the Assignor has executed this Assignment the day and year first above written.
ASSIGNOR:
Signed, sealed and delivered
in the presence of:
MORTGAGOR:
WYMAN FIELDS FOUNDATION, INC.,
a Florida non-profit corporation
By:
ANTHONY PERRONE, President
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF BREVARD
The foregoing instrument was acknowledged before me this day of May, 2000, by ANTHONY
PERRONE, President of WYMAN FIELDS FOUNDATION, INC., a Florida non-profit corporation, who is
personally known to me or who produced as identification.
NOTARY PUBLIC
4
Ii.
..;.
"
ASSIGNMENT OF CONSTRUCTION DOCUMENTS
TIllS ASSIGNMENT, made this day of May, 2000, by WYMAN FIELDS FOUNDATION,
INC., a Florida non-profit corporation ("Borrower"), having an address at 207 N. Moss Road, Suite 105, Winter
Springs, Florida 32708, to and for the benefit of THE CITY OF WINTER SPRINGS, FLORIDA, a Florida
municipal corporation, having an address at 1126 E. State Road 434, Winter Springs, Florida 32708 ("Lender");
WITNESSETH:
WHEREAS, Lender has agreed to make a construction loan in the principal amount of SEVEN HUNDRED
EIGHTY TWO THOUSAND SEVENTY ONE AND NO/tOO DOLLARS ($782,071.00) to Borrower (the
"Loan") for the purpose of financing the construction of certain improvements on Borrower's land located as
described on Exhibit "A" attached hereto; and
WHEREAS, as a condition of making the Loan, Borrower has agreed, among other agreements, to assign
to Lender the various contracts, plans and specifications, and certain other documents and agreements relating to
the design and construction of the improvements.
NOW, THEREFORE, as an inducement to Lender to make the Loan and for other good and valuable
considerations, the receipt and adequacy of which are hereby acknowledged, Borrower hereby grants, transfers and
assigns unto Lender, its successors and assigns, all of the right, title and interest of Borrower in, to and under any
and all documents, instruments and agreements, whether now or hereafter existing, relating to the construction of
the improvements (hereinafter collectively referred to as the "Construction Documents") including, without
limitation, any and all construction contracts, architecture contracts, engineering contracts, plans, specifications,
drawings, surveys, bonds, permits, licenses and other governmental approvals, and all amendments, revisions and
modifications thereto.
Borrower represents and warrants that it has made no other assignment of any of its rights under the
Construction Documents to any other person or entity; that it has done no act, nor failed to do any act, which might
prevent Lender from exercising any of the rights; powers and privileges conferred upon Borrower by the
Construction Documents as contemplated by this Assignment; and, that Borrower is not in default under the
provisions of any of the Construction Documents and, to the knowledge of Borrower, none of the other parties to
the Construction documents is in default under the provisions thereof.
Borrower agrees that it will (i) perform each covenant of Borrower contained in the Construction
Documents; (ii) give prompt notice to Lender of any claim of default under any of the Construction Documents; (iii)
at the sole cost and expense of Borrower, enforce the performance and observance of each and every covenant and
condition of the Construction Documents; and (iv) appear in and defend any action growing out of or in any manner
connected with the Construction Documents.
The rights assigned hereunder include all of Borrower's right to modify and to terminate the Construction
Documents and to waive or release the performance of any obligation contained therein. Without the written consent
of Lender, Borrower will not modify the Construction Documents nor waive or release any person from the
performance of any obligation contained therein.
It shall be an event of default under this instrument if Borrower fails to perform any covenant herein set
forth, or should any warranty of Borrower contained herein at any time prove to be untrue or misleading.
Should Borrower fail to perform any covenants contained in the Construction Documents, then Lender, but
without obligation to do so and without notice to or demand on Borrower or releasing Borrower from its obligations
so to do, may perform such covenant or condition and may appear in and defend any action affecting the
Construction Documents. Any costs incurred by Lender in connection with the foregoing shall be included in the
indebtedness secured hereby and shall bear interest at the default rate under the promissory note evidencing the
Loan.
Lender shall not be obligated to perform any obligations of Borrower under the Construction Documents,
and Borrower agrees to indemnify and hold Lender harmless against any and all liability, loss or damage which
Lender may incur under the Construction Documents or under or by reason of this Assignment. Should Lender incur
any such liability, loss or damage, the amount thereof, including costs, expenses and attorneys' fees, shall be
included in the indebtedness secured by this instrument and shall bear interest at the default rate under the
promissory note evidencing the Loan.
This Assignment is made in order to secure the payment by Borrower to Lender of the Loan and the
performance by Borrower of each and every obligation, covenant and agreement of Borrower contained herein or
in the other documents and instruments executed by Borrower in connection with the Loan (said documents and
instruments being hereinafter called the "Loan Documents "). The rights of Lender under this Assignment shall be
operative, at the option of Lender, from and after the time of any default by Borrower under any of the provisions
of this Assignment or the Loan Documents. In the event of a foreclosure or a transfer in lieu of foreclosure or other
acquisition of title to the land and improvements, all right, title and interest of Borrower in, to and under the
Construction Documents shall pass to the purchaser, at its option, and Lender is hereby irrevocably authorized by
Borrower to assign any such Construction Document to any such purchaser, without accounting to Borrower in any
manner whatsoever.
This Assignment shall inure to the benefit of and be binding upon the parties hereto and their respective
heirs, successors, personal representatives, and assigns.
This Assignment shall be governed by and construed in all respects under the laws of the State of Florida.
IN WITNESS WHEREOF, the Borrower has caused this Assignment to be executed and sealed in its name
by authority duly given, as of the day and year first above written.
BORROWER:
Signed, sealed and delivered
in the presence of:
MORTGAGOR:
WYMAN FIELDS FOUNDATION, INC.,
a Florida non-profit corporation
By:
ANTHONY PERRONE, President
Print Name:
Print Name:
2
CONSENT AND AGREEMENT
FOR VALUE RECEIVED, the undersigned, each of whom has, pursuant to one or more of the
"Construction Documents", as defined in the foregoing Assignment of Construction Documents (the "Assignment"),
performed or supplied, or agreed to perform or supply, certain services, materials, and/or documents in connection
with the construction of the Improvements referred to in the Assignment (each of the undersigned being hereinafter
severally referred to as the "Undersigned") hereby acknowledge and consent to the Assignment. Each of the
Undersigned does hereby warrant and represent that no default exists under the terms of any agreement between
Borrower and the Undersigned. Each of the Undersigned does hereby agree that (a) in the event of any default by
Borrower under the terms of the "Loan Documents", as defined in the Assignment, Lender shall be entitled to use
without further payment or charge of any kind and any and all plans, specifications, drawings and surveys prepared
or owned by the Undersigned relating to the construction of the Improvements contemplated by said Loan
Documents, and that (b) in the event of any default by Borrower under the terms of said Loan Documents, the
Undersigned shall, upon receipt of written notice and demand of Lender, continue performance on behalf of Lender
provided that the Undersigned is reimbursed for such performance on behalf of Lender in accordance with its
agreement for the performing or supplying of such services, materials and/or documents, and that (c) in the event
of any default by Borrower under the terms of any agreement between Borrower and the Undersigned, then the
Undersigned shall deliver to Lender, by certified United States mail, postage prepaid, return receipt requested,
written notice of such default and the action required to cure the same, and Lender shall have a reasonable time (but
in no event less than ten (10) days after receipt of such notice) within which Lender shall have the right, but not the
obligation, to cure such default, and the delivery of such notice of default and the failure of Lender to cure the same
within the time allowed, as aforesaid, shall be conditions precedent to the exercise of any right or remedy of the
Undersigned arising by reason of such default, and that (d) the Undersigned shall not enter into any modification
or amendment of any agreement between Borrower and the Undersigned without the prior written consent of Lender.
WITNESS tlle hands and seal of each of the Undersigned, as of the day and year first above written.
CONTRACTOR:
WITNESSES:
By:
ARCHITECT:
WITNESSES:
By:
'J
BORROWER:
WYMAN FIELDS FOUNDATION, INC.
LENDER:
THE CITY OF WINTER SPRINGS,
a Florida municipal corporation
CLOSING AGENT:
Kohn Bennett, Esquire
CLOSING DATE:
May _, 2000
FURTHER ASSURANCE 'AGREEMENT
For and in consideration of the Closing Agent disbursing proceeds of this Loan, and in order to insure the
accuracy of settlement statements, mortgages and other documents of closing in this transaction, the undersigned
do mutually agree to cooperate, adjust, initial, re-execute and re-deliver any and all closing documents if deemed
necessary or desirable in the reasonable discretion of Closing Agent. It is the intention of the undersigned that all
documentation for this transaction and all payments or disbursements made shall be an accurate reflection of the
parties' agreement; that each party should pay all costs and expenses contemplated by their agreement and/or
dictated by custom and usage in this area.
The undersigned do hereby so agree and covenant to assure that this transaction and its documentation will
conform to the parties' agreement and it is understood that Closing Agent will rely upon this agreement and the
covenants herein Closing this transaction.
day of May, 2000.
DATED this
BORROWER:
THE CITY OF WINTER SPRINGS, a
municipal corporation
Attest:
By:
Name:
Title:
City Clerk
Name: PAUL P. PARTYKA
Title: MAYOR
WYMAN FIELDS FOUNDATION, 1Ne.,
a Florida non-profit corporation
Print Name:
By:
ANTHONY PERRONE, President
Print Name:
BRE~ARD ,COUNTY
UNIFORM COMMERCIAL CODE
STATE OF FLORIDA
FINANCING STATEMENT
FORM UCC-l (REV. 1993)
11.;0;: Rimulr"ing ~t!\f,.,.ln...llt ic: prPC,..'I'....rI tn g filing ,."ffi.......r fnr filing pnrclHlInf In flu. TTnifnnn ("nml1'...rY"inl (",Nfp.
1. Debtor (Last Nlune first if 8lI Indivillual
WYMAN FIELDS FOUNDA TION, INC.
lh. Mailing Address
207 N. Moss Road, Suite 105
2. Additional Dehtor or Trade NllJIle (Last NllJIle first if RII Individual
la. Date of Birth or FEIn
Ie. City, State
Winter S fin s, Florida
Id. Zip Code
32708
2a. Date of Birth or FEIn
2h. Mailing Address
2c. City, State
2d. Zip Code
3. Secured Party (Last NllJIle first if RII Individual
THE CITY OF WINTER SPRINGS, FLORIDA
3h. Mailing Address
1126 E. State Road 434
4. Assignee of Secured Party (Last NllJIle first if RII Individual
s, Florida
3d. Zip Code
32708
4h. Mailing Address
4c. City, State
4d. Zip Code
5. Tltis Financing Stlltement covers the following types or items or property (Include description of real property on which located 8lId owner or record when
required. If more space is required, llttuch additional sheet(s)).
See Exhibit "A" attached hereto and incorporated herein.
6. Check only if Applicnble: 0 Products of collllteral are al~o covered.
o Proceeds of collateral are also covered.
Debtor is transmitting utility.
7. Check appropriate box: I8l All documentary stllJllp tuxes due and payable or to become due RIld payable pursuant to s. 201.22 F.S., have been paid.
(One box must be marked) 0 Florida Documentury Stump Tax is not required.
8. In accordRIlce with s. 679.402(2), F.S., tlds statement is f1led \\1thout the Debtor's signature 9. Number of additional sheets presented: _
To perfect a security interest in collateral:
o already subject to a security interest in another jurisdiction when it WIIS brought into this
Stute or debtor's locntion changed to tltis state. This Space for Use of Filing Officer
o which is proceeds of the original collateral described above in which a security interest WIIS
Perfected.
o lIS to which the filing hIlS lapsed. Date Filed RIld previous
UCC-l f1le mmlber
o Acquired after a change of nllJlle, identity, or corporate structure of the debtor.
10. Signature(s) of Debtor(s)
WYMAN FIELDS FOUNDATION, INC.
By:
ANTHONY PERRONE, President
11. Signature(s) of Secured Party or if Assigned, by Assignee(s)
THE CITY OF WINTER SPRINGS, FLORIDA
NllJIlc
r-= BelUlett, Esquire
[
Address
96 Willard Street
Address
Suite 302
City, Stllte, Zip
Cocoa, Florida 32922
Exhibit" A"
DESCRIPTION OF COLLATERAL
SECURED PARTY:
THE CITY OF WINTER SPRINGS, FLORIDA
DEBTOR:
WYMAN FIELDS FOUNDATION, INC.
All equipment, goods, inventory, furniture, fixtures and cash proceeds thereof, insurance
proceeds and general intangibles wherever located, now owned or hereinafter acquired or created
and all parts, accessories and additions thereto or replacements.
The collateral also consists of the following property, whether now or hereafter existing,
created or acquired In connection with or located at the real property at
, as more particularly described on Exhibit
"B" attached hereto (the "Real Property").
All leasehold estate, and all right, title and interest of Debtor in and to all leases or
subleases covering the Real Property or any portion thereof now or hereafter existing or entered
into, and all right, title and interest of Debtor thereunder, including, without limitation, all cash
or security deposits, advance rentals, and deposits or payments of similar nature.
All right, title and interest of Debtor in and to all options to purchase or lease the Real
Property or any portion thereof or interest therein, and any greater estate in the Real Property
owned or hereafter acquired.
All easements, streets, ways, alleys, rights-of-way and rights used in connection therewith
or as a means of access thereto, and all tenements, hereditaments and appurtenances thereof and
thereto, and all water rights.
Any and all buildings, structures, piers, pilings, docks, boardwalks, seawalls, and
improvements now or hereafter erected thereon, including, but not limited to the fixtures,
attachments, appliances, equipment, machinery, and other articles attached to said buildings,
structures and improvements (sometimes hereinafter referred to as the "Improvements").
All fixtures, appliances, machinery, equipment, furniture, furnishings and articles of
personal property now or hereafter affixed to, placed upon, or used in connection with the
operation of any of said properties and all gas, steam, electric, water and other heating, cooking,
refrigerating, lighting, plumbing, ventilating, irrigating and power systems, machines, appliances,
fixtures, and appurtenances which are now or may hereafter pertain or be used with, in or on said
Real Property, even though they may be detached or detachable and all building improvement and
construction materials, supplies and equipment hereafter delivered to said land contemplating
installation or use in the constructions thereon and all rights and interests of Debtor in building
permits and architectural plans and specifications relating to contemplated constructions or
Improvements on said Real Property and all rights and interests of Debtor in present or future
mortgage loan commitments pertaining to any of said Real Property or Improvements thereon
(sometimes hereinafter referred to as the "Personal Property").
All awards and proceeds of condemnation for the Real Property or any part thereof to
which Debtor is entitled for any taking of all or any part of the Real Property by condemnation
or exercise of the right of eminent domain. All such awards and condemnation proceeds are
hereby assigned to Secured Party and the Secured Party is hereby authorized, subject to the
provisions contained in the Mortgage of even date from Debtor to Secured Party, to apply such
awards and condemnation proceeds or any part thereof, after deducting therefrom any expenses
incurred by the Secured Party in the collection or handling thereof, toward the payment, in full
or in part, of the Note, notwithstanding the fact that the amount owing thereon may not then be
due and payable.
All rents, issues and profits of the Real Property and all the estate, right, title and interest
of every nature whatsoever of the Debtor in and to the same.
All accounts (including contract rights) and general intangibles pertaining to or arising
from or in connection with all or any part of the Real Property, and the foregoing, including
without limitation all proceeds and choses in action arising under any insurance policies
maintained with respect to all or any part of the Real Property or any of the foregoing.
All proceeds, products, replacements, additions, substitutions, renewals and accessions of
any of the foregoing items.
All of Debtor's rights to any fictitious, trade, or other names used in conjunction with the
Real Property and Personal Property.
':jECRET AR Y OF STATE
. .,
UNIFORM COM~\1ERCIAL CODE
STATE OF FLORIDA
FINANCING STATEMENT
FORM UCC-l (REV. 1993)
"Ii~ f.Oin'ltlr.illg ~f'l,pon,pnt i-: pt''''~PIl'I">r1 In !'II fil;ng nffl"pr fnr filing pllr<,mnnt In ,hI' TTnifnnn 0nnm,pr,..inl rrvt....
1. Dehtor (Last Name first if IUI Individual
WYMAN FIELDS FOUNDATION, INC.
lh. Mailing Address
207 N. Moss Road, Suite 105
2. Additional Dehtor or Trade N/lJne (Last N/lJne first if an Individual
la. Date of Birth or FEIff
1 c. City, State
Winter S rin TS, Florida
Id. Zip Code
32708
2a. Date of Birth or FEI#
2h. Mailing Address
2c. City, State
2d. Zip Code
3. Secured Pllrty (Last Nllme first if an Individual
THE CITY OF WINTER SPRINGS, FLORIDA
3b. Mailing Address
1126 E. State Road 434
4. Assignee of Secured Party (Last Name first if an Individual
s, Florida
3d. Zip Code
32708
4b. Mailing Address
4c. City, State
4d. Zip Code
5. This Financing Statement covers the following types or items or property (Include description of real property on whiclllocated and owner or record when
required. If more space is required, attach additional sheet(s)).
See Exhihit "A" attached hereto and incorporated herein.
6. Check only if Applicable: 0 Products of collateral are also covered.
o Proceeds of collateral are also covered.
Debtor is transmitting utility.
7. Check appropriate box: 18I All documentary stanlp taxes due and payable or to become due and payable pursuant to s. 201.22 F.S., have been paid.
(One box must be marked) 0 Florida DoclUllentarv Stamp Tax is not required.
8. In accordance with s. 679.402(2), F.S., this statement is fIlell without the Debtor's signature 9. Nwnber of additional sheets presented: _
To perfect a security interest in collateral:
o already subject to a security interest in /lI1other jurisdiction when it was brought into tltis
State or debtor's location ch/ll1ged to tltis state. This Space for Use of Filing Officer
o which is proceeds of the original collateral described above in which a security interest was
Perfected.
o as to which the filing has lapsed. Date Filed /lJld previous
UCC-l file mUllber
o Acquired after a change of name, identity, or corporate structure of the debtor.
10. Signature(s) of Debtor(s)
WYMAN FIELDS FOUNDATION, INC.
By:
ANTHONY PERRONE. President
11. Signature(s) of Secured Party or if Assigned, by Assignee(s)
THE CITY OF WINTER SPRINGS, FLORIDA
Address
96 Willard Street
Address
Suite 302
City, State, Zip
Cocoa, Florida 32922
J.
~
I
Exhibit "A"
DESCRIPTION OF COLLATERAL
SECURED PARTY:
THE CITY OF WINTER SPRINGS, FLORIDA
DEBTOR:
WYMAN FIELDS FOUNDATION, INC.
All equipment, goods, inventory, furniture, tixtures and cash proceeds thereof, insurance
proceeds and general intangibles wherever located, now owned or hereinafter acquired or created
and all parts, accessories and additions thereto or replacements.
The collateral also consists of the following property, whether now or hereafter existing,
created or acquired III connection with or located at the real property at
, as more particularly described on Exhibit
liB" attached hereto (the "Real Property").
All leasehold estate, and all right, title and interest of Debtor in and to all leases or
subleases covering the Real Property or any portion thereof now or hereafter existing or entered
into, and all right, title and interest of Debtor thereunder, including, ,:"ithout limitation, all cash
or security deposits, advance rentals, and deposits or payments of similar nature.
All right, title and interest of Debtor in and to all options to purchase or lease the Real
Property or any portion thereof or interest therein, and any greater estate in the Real Property
owned or hereafter acquired.
All easements, streets, ways, alleys, rights-of-way and rights used in connection therewith
or as a means of access thereto, and all tenements, hereditaments and appurtenances thereof and
thereto, and all water rights.
Any and all buildings, structures, piers, pilings, docks, boardwalks, seawalls, and
improvements now or hereafter erected thereon, including, but not limited to the fixtures,
attachments, appliances, equipment, machinery, and other articles attached to said buildings,
structures and improvements (sometimes hereinafter referred to as the "Improvements").
All fixtures, appliances, machinery, equipment, furniture, furnishings and articles of
personal property now or hereafter affixed to, placed upon, or used in connection with the
operation of any of said properties and all gas, steam, electric, water and other heating, cooking,
refrigerating, lighting, plumbing, ventilating, irrigating and power systems, machines, appliances,
fixtures, and appurtenances which are now or may hereafter pertain or be used with, in or on said
Real Property, even though they may be detached or detachable and all building improvement and
construction materials, supplies and equipment hereafter delivered to said land contemplating
installation or use in the constructions thereon and all rights and interests of Debtor in building
permits and architectural plans and specifications relating to contemplated constructions or
Improvements on said Real Property and all rights and interests of Debtor in present or future
mortgage loan commitments pertaining to any of said Real Property or Improvements thereon
(sometimes hereinafter referred to as the "Personal Property").
All awards and proceeds of condemnation for the Real Property or any part thereof to
which Debtor is entitled for any taking of all or any part of the Real Property by condemnation
or exercise of the right of eminent domain. All such awards and condemnation proceeds are
hereby assigned to Secured Party and the Secured Party is hereby authorized, subject to the
provisions contained in the Mortgage of even date from Debtor to Secured Party, to apply such
awards and condemnation proceeds or any part thereof, after deducting therefrom any expenses
incurred by the Secured Party in the collection or handling thereof, toward the payment, in full
or in part, of the Note, notwithstanding the fact that the amount owing thereon may not then be
due and payable.
All rents, issues and profits of the Real Property and all the estate, right, title and interest
of every nature whatsoever of the Debtor in and to the same.
All accounts (including contract rights) and general intangibles pertaining to or arising
from or in connection with all or any part of the Real Property, and the foregoing, including
without limitation all proceeds and choses in action arising under any insurance policies
maintained with respect to all or any part of the Real Property or any of the foregoing.
All proceeds, products, replacements, additions, substitutions, renewals and accessions of
any of the foregoing items.
All of Debtor's rights to any fictitious, trade, or other names used in conjunction with the
Real Property and Personal Property.
LOAN AGREEMENT
TIllS AGREEMENT made this day of May, 2000, by and between THE CITY OF
WINTER SPRINGS, FLORIDA, a municipal corporation, hereinafter called the Lender, and
WYMAN FIELDS FOUNDATION, INe., a Florida non-profit corporation hereinafter called
the Borrower.
WITNESSETH:
WHEREAS, the Borrower is the owner of certain property located in Brevard County,
Florida, described as follows:
See Exhibit "A" (the "Land")
AND
WHEREAS, the Borrower has applied to Lender for a loan in the sum of SEVEN
HUNDRED EIGHTY TWO THOUSAND SEVENTY ONE AND NOIlOO DOLLARS
($782,071.00) ("Loan") to be disbursed as herein provided and evidenced by a Promissory Note dated
of even date herewith ("Note") and secured by a Mortgage dated of even date herewithy encumbering
the Land; and
WHEREAS, the proceeds of the Loan are to be utilized for the rehabilitation and
construction of certain improvements on the Land to enable Borrower to sell the individual residential
units thereon ("Improvement"), and
WHEREAS, the Lender is willing to make a construction mortgage loan (the "Loan") on the
Land upon the terms and conditions hereafter stated, and not otherwise;
NOW, THEREFORE, IT IS HEREBY AGREED between the parties to this Agreement
in consideration of the benefits accruing under the terms of this contract, and in further consideration
of valuable considerations mutually interchanged between the parties, receipt of which are
acknowledged, as follows:
1.00 MORTGAGE. The Borrower has executed a note and mortgage to the Lender
encumbering the Land in the principal sum of SEVEN HUNDRED EIGHTY TWO THOUSAND
SEVENTY ONE AND NO/lOO DOLLARS ($782,071.00), and payable as provided in the note and
mortgage. The Borrower agrees to furnish to the Lender evidence of title to the Land by way of a
title insurance policy issued by a recognized title insurance company acceptable to the Lender,
showing the mortgage to be a valid second lien on the Land, to the full and complete satisfaction of
the attorneys for the Lender. This Construction Loan Agreement by reference is made a part of said
mortgage.
2.00 COMMENCEMENT OF CONSTRUCTION AND NOTICE OF
COMMENCEMENT. Prior to commencement of construction and the disbursement of any portion
of the construction loan fund, the Borrower shall:
A. Execute and record a Notice of Commencement; and
B. Obtain from the governmental authorities having jurisdiction, a final building
permit to construct the Improvements.
The Borrower agrees not to permit recordation of any Notice of Commencement prior to
recording the mortgage.
3.00 CONSTRUCTION. The Borrower agrees to complete the construction of the
Improvements in accordance with the plans and specific~tions submitted to and approved by the
Lender, with the work to be performed by the contractor specified to the Lender, the construction
to be commenced on or before May , 2000 and to continue without abandonment arid to be
completed with due diligence. Any change orders must have prior approval of the Lender, and must
be accompanied by revised plans.
4.00 ADVANCES.
4.01 Loan Advances. Disbursement of the Loan proceeds shall be made to the cost categories
for which funds have been allocated as specified in Exhibit "B" hereof by way of (a) an initial advance
and (b) several additional advances. The aggregate amount of the initial and additional advances will
be the total of sums actually paid or incurred by Borrower for each of the cost categories specified
in Exhibit UB" hereof, but in no event will the initial or additional advances exceed the total of all
sums allocated to such cost categories, being, in the aggregate, the Loan Amount. Under no
circumstances shall the existence or availability of additional advances which Borrower may request
for the payment of interest relieve Borrower of the obligation to pay interest on the principal amount
of the Loan outstanding. In the case of all advances, Lender shall have the right to make payment
by check to Borrower or by joint check to Borrower, the construction contractor, subcontractors and
suppliers of labor, services and materials in any combination or by credit directly to Borrower's or
contractor's account, all of which shall separately or in any combination constitute proper
disbursement.
4.02 Conditions Precedent to Initial Advance: As conditions precedent to the making of the
initial advance and additional advances hereunder, Borrower shall satisfy the following conditions to
Lender's satisfaction:
A. Title Insurer shall have irrevocably committed to issue to Lender the Title
Insurance Policy without any exception for the "gap."
B. The Loan Documents, each in form and substance satisfactory to Lender, shall
have been executed and delivered to Lender, and the Title Insurer shall have acknowledged receipt
for all of the Loan Documents to be recorded with sufficient monies to pay the costs of recording,
including stamps and taxes, and shall have agreed to record such documents forthwith and return
them to Lender immediately after recording.
C. Lender shall have received two complete sets of original plans and specifications
for the Improvements stamped with all approvals of all applicable governmental authorities and signed
2
by Borrower, prepared in accordance with Lender's administrative requirements by the Borrower's
architect and certified by him under seal. The plans and specifications shall have been fully approved
by Lender's construction inspector, and the full written report of review of the plans and
specifications by the Lender's construction inspector shall have been reviewed and accepted by
Lender.
D. Lender shall have received two prints of the survey.
E. Lender shall have received a fully executed counterpart of the construction
contract.
F. Lender shall have received consents from the construction contractor, the
Borrower's architect and any other party deemed necessary by Lender to the Borrower's assignment
to Lender of Borrower's rights under their respective contracts with Borrower.
G. A Notice of Commencement signed by Borrower shall have been delivered to the
Title Insurer to be recorded on a date subsequent to the date of the recording of the Mortgage. The
Borrower shall have agreed to post a certified copy thereof posted on the Land in accordance with
the Florida Construction Lien Law. LENDER WILL NOT ADVANCE ANY FUNDS FOR
CONSTRUCTION OF THE IMPROVEMENTS UNTIL THE NOTICE OF COMMENCEMENT
HAS BEEN RECORDED IN THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA
AND A CERTIFIED COpy OF THE SAME HAS BEEN POSTED ON THE LAND.
H. Annually, Borrower shall procure and maintain or shall cause to be procured and
maintained continuously in effect until repayment of the Loan, policies of insurance in form and in
amounts and issued by companies, associations or organizations satisfactory to Lender covering such
casualties, risks, perils, liabilities and other hazards required by Lender. Certified copies of the
policies, endorsements and renewals thereof, shall be delivered to and retained by Lender unless
Lender waives this requirement in writing. All policies shall expressly protect or recognize Lender's
interest as required by Lender.
1. Lender shall be furnished with satisfactory evidence (which may be a letter from
the appropriate agent of the National Flood Insurance Association) that the Land is or is not located
in an area designated by the Secretary of Housing and Urban Development as having special flood
hazards. If the Land is so located, Lender shall be furnished, at Borrower's expense, with a certificate
of insurance and original insurance policy on the Project for loss due to flood, and such other hazards
for which coverage is available, in form, content and issued by a carrier satisfactory to Lender in the
maximum amount obtainable under law. Such policy shall contain a Standard Mortgagee Clause in
favor of Lender and shall provide for notice to Lender of any claims made under such policies and
for 30 days' written notice to Lender prior to any change in the policy or coverage afforded thereby,
cancellation for any reason, or payment of any claims to any persons.
1. An assignment to Lender of the rights of Borrower to the Plans and Specifications
and the shop drawings for the Project shall have been executed by Borrower, in form and substance
satisfactory to Lender, and delivered to Lender.
3
K. Lender shall have received, in form and substance satisfactory to Lender, a consent
of the Borrower's architect who prepared the plans and specifications and shop drawings prepared
incidental thereto for Lender to use, without cost, such plans and specifications and shop drawings
to complete the Improvements if Lender acquires possession or title to the Land before the
Improvements are completed.
L. Lender shall have received evidence satisfactory to Lender and Lender's
Construction Inspector that (i) soil, piling, toxic waste, hazardous materials and other tests made and
completed on the Land support the foundation analysis and conclusion made by a firm or firms
acceptable to Lender, (ii) the Plans and Specifications have been prepared consistent with such
analysis and conclusions and (iii) the foundation of the Improvements if built in accordance with the
Plans and Specifications will adequately and properly support the Improvements.
M. The Loan pursuant hereto shall be Ifin balance."
N. The Borrower's representations and warranties made unto Lender concurrently
herewith continue to be true.
O. Borrower shall not be in default hereunder or under any of the Loan Documents
or the Lender's Loan Commitment Letter dated January 31,2000.
P. Borrower shall have established an account with Lender for the disbursement of
all Loan proceeds and for the operation of the Construction Loan Project described herein.
Q. Lender shall have received an Appraisal acceptable to Lender in form and
substance, in its sole and absolute discretion.
R. Borrower shall provide to Lender a Draw Schedule acceptable to Lender which
Draw Schedule shall be attached to this Agreement as Exhibit "B."
Any waiver of these conditions precedent or the time for their fulfillment must be in writing
and signed by an officer of Lender and any waiver which may be granted shall not be deemed a waiver
of anything but such as is stated in such written waiver and shall under no circumstances be deemed
or construed to be a subsequent waiver for a subsequent advance.
4.03 Conditions Precedent to Additional Advances. As conditions precedent to the making of
each additional advance under the Loan, the following conditions shall be satisfied to Lender's
satisfaction:
A. Borrower shall be in compliance with (i) all conditions precedent for the making
of the initial advance, as set forth above in Section 4.02 above and (ii) all conditions precedent set
forth elsewhere in this Agreement.
B. The Loan shall be "in balance."
C. No Event of Default shall have occurred and be continuing.
4
D. No litigation, arbitration or other proceeding shall have been commenced against
Borrower or the construction contractor, which in Lender's sole judgment, impairs or is likely to
impair Borrower's, construction contractor's or the guarantors' ability to complete the Project or
perform any of their obligations under the Loan Documents.
E. Lender shall have received Partial Releases of Lien for the previous draw, in form
and substance satisfactory to Lender for all encumbrances attaching to that portion of the Project for
which such advances are disbursed. Notwithstanding the foregoing, Lender, in its reasonable
discretion, may require the receipt of Partial Releases of Lien through the current draw.
F. Lender shall have received a commitment by the Title Insurer to endorse the Title
Insurance Policy within 5 days following the requested advance to increase the amount of coverage
to include the advance then requested and insuring that Lender has a first lien on that portion of the
Project for which the advance has been disbursed. The commitment shall disclose all encumbrances
recorded against the Project from the date of the last commitment received by Lender. Lender shall
not be required to fund any additional advances if Lender shall disapprove of any of such
encumbrances.
G. Lender shall have received a recertification of the Survey (foundation and as-built
only) reflecting all changes in the physical conditions of the Land and Improvements subsequent to
the date of the last certification of the Survey. Each such recertification shall show all construction
or development work in place. Within 10 days after substantial completion of the Improvements,
Borrower shall furnish to Lender a final "As-Built" survey showing the location of all improvements
constructed on the Land.
4.04 Requests and Certificates for Payment. At the time Borrower requests each advance
hereunder, there shall be delivered to Lender and Lender's construction inspector a requisition of
Borrower and the construction contractor, prepared on Lender's requisition form and completed in
form satisfactory to Lender. Borrower also shall deliver a certificate, signed by the Borrower,
construction contractor, the Borrower's architect (the "Architect's Certificate") and the Lender's
construction inspector, certifying that the work for which payment is requested has been completed
in accordance with the plans and specifications, and a certificate signed by Borrower and the
construction contractor certifying that such work has been fully paid for or will be fully paid for with
the proceeds of the advance, except that the required retainage under the Florida Construction Lien
Law may be withheld. Each such certificate shall constitute a representation by Borrower that it
reaffirms as true all representations made to Lender herein or herewith and that all conditions to such
disbursement herein have been fulfilled; that any materials to be paid for have been physically
incorporated into the Improvements free ofliens and encumbrances andJhat the work conforms to
the plans and specifications, and to ~pplicable governmental requirements. With regard to materials
stored on the Land, any advances therefor are solely at the discretion of the Lender, and such
materials shall be stored in a secured manner and protected from damage or theft. Materials stored
off-site shall be either in a bonded warehouse, or ifin a supplier's warehouse, the supplier shall supply
evidence of adequate insurance. Borrower also shall provide to Lender evidence of insurance in
transit. Lender further reserves the right to have its construction inspector verify the quantity and
location of such materials. The approval of any of such certificates by Lender shall not constitute an
acceptance of the work and materials, nor be binding upon Lender, except to the extent that the facts
5
are so represented when so approved.
4.05 Time of Advances. Advances will be made not more often than twice in each calendar
month as construction progresses and shall be in amounts of not less than $ 20,000.00. At least 5
days prior to the date on which the advance is requested, Borrower shall furnish to Lender (i) copies
of all lien waivers through the previous draw or releases for all lienable work performed on the
project and paid for with the proceeds of the prior disbursement (all such waivers or releases to be
on such forms as are required by Lender), (ii) copies of all contractor's affidavits as to payment of
work to date and a Borrower's affidavit as to such work as is not covered by the construction
contract, each together with supporting documentation evidencing to Lender's satisfaction payment
of all costs incurred in connection with the project to date and funded under the Loan, (iii) montWy
photographs of the progress of the construction, if requested by Lender, (iv) a report in form and
content satisfactory to Lender from Lender's construction inspector and (v) such other documents
supporting the request for an advance as Lender may reasonably require.
4.06 Disbursement of Advances. Subject to all of the terms, conditions and provisions of this
Agreement, the Loan proceeds shall be advanced as follows:
A. The advances hereunder shall consist of the initial and several intermediate
disbursements of Loan proceeds to be made during the progress of construction of the Improvements.
The initial and intermediate additional advances shall consist of (1) the amounts payable to or for
Borrower pursuant to the construction contract and other construction contracts, to the extent, if any,
modified by this Agreement, (2) taxes and other impositions assessed against the Project during the
period of construction, (3) interest payable to Lender prior to maturity of the Note( s] and (4) all other
sums shown on Exhibit "B," payable by or on behalf of Borrower in connection with the project.
The aggregate amount of the advances will be the total of sums actually paid or incurred by Borrower
for each of the cost line items specified in Exhibit "B" hereof, but in no event will the advances
exceed the total of all sums allocated to such cost line items, being in the aggregate the Loan Amount.
Upon request by Borrower, Lender in its sole discretion shall have the right, but shall not be obligated
to increase, decrease, reallocate or reapply the amount of the Loan to be disbursed for each item
scheduled in Exhibit "B." Notwithstanding anything herein to the contrary, Lender shall not be
obligated to advance for construction costs during construction more than the value of the work
completed or percentage of the work in place, save and except certain materials stored on the Land
or off-site and approved for payment by the Lender's construction inspector, nor shall Borrower be
relieved of its obligations to pay when due any taxes, liens or other obligations of or impositions
against the project or interest accruing prior to maturity of the Note. Lender, however, may at all
times withhold further disbursements of any allocated funds at any time when, on the basis of its own
analysis or its construction inspector's certification that the Loan is not "in balance," or when any such
tax, lien, obligation or imposition is due and owing but unpaid by Borrower.
B. The final advance for sums due on the construction contract or for other
construction contracts shall be made following completion of the portion ofImprovements covered
under such contracts to the satisfaction of Lender and the furnishing of the following documentation
( as applicable) as to each such contract: (1) a certificate or certificates of occupancy, as applicable;
(2) architect's and/or engineer's certificate of completion of the work under such contract in
accordance with the plans and specifications; (3) all required contractor's and owner's affidavits; (4)
6
Lender's construction inspector's certificate of completion of the work under such contracts
(including completion of the contractor's final punch list items which punch list shall be prepared by
the Borrower and approved in writing by the Lender's construction inspector); (5) releases or
waivers of all potential mechanics' and materialmen's liens, including, without limitation, the lien
rights of construction contractor and other contractors, which releases or waivers must be acceptable
to Lender and the title insurer; (6) a certificate of the Borrower stating that the project has been
constructed in accordance with the plans and specifications therefor and that the requirements of this
Construction Loan Agreement and the other loan documents with respect to the construction and the
completion of the project have been satisfied; (7) the documents and deliveries required by any of the
other loan documents; and (8) in the case of the last advance of Loan proceeds hereunder, the final
endorsement to the mortgagee's title insurance policy reflecting no additional exceptions thereto and
a final recertification of the survey reflecting the project as completed. Regardless of the amount of
the Loan herein or in any Loan document, Lender shall not be required to disburse more than 100%
of actual construction and other costs approved for advancement hereunder.
C. Whether or not Borrower submits a specific request therefor, it shall be presumed,
in the absence of notice from Borrower to the contrary, that Borrower has requested the payment of
then due and accrued and current interest on the Loan; provided, however, this shall not relieve
Borrower from the obligation of paying accrued interest on the Loan then due.
4.07 Retainage and Proper Payments Under the Florida Construction Lien Law. Borrower will
make only such payments to any contractor, including the construction contractor, on account of
construction contracts or for other work which may entitle the person performing it to lien rights in
the Land, as are "proper payments" under the Florida Construction Lien Law, and, therefore
authorizes the holdback by Lender of such amounts as may be necessary to preserve the "proper
payment" characterization of each such payment. A copy of each affidavit required or allowed by the
Florida Construction Lien Law, including the general contractor's and other contractors' affidavits
on final payment, will be furnished to Lender by Borrower and Borrower's submission of such copy
shall constitute a representation of its authenticity. Borrower agrees to furnish to Lender and the
Title Insurer such lien waivers and/or releases, together with such paid receipts and affidavits, in
proper form as Lender and the Title Insurer may reasonably require from time to time to assure them
of the expenditure of advances for costs of the Improvements. In the case of all disbursements under
the Loan, Lender shall have the right to make payment by check or joint check to Borrower, the
construction contractor, subcontractors and suppliers in any combination or by credit directly to the
Borrower's or the construction contractor's account, all of which shall separately or in any
combination constitute proper disbursement.
4.08 Advance of Interest Owing. Borrower authorizes Lender to disburse proceeds of the
Loan to pay interest due on the Note, notwithstanding that Borrower may not have requested a
disbursement of such amount. Such disbursement if made shall be added to the outstanding principal
balance of the Note. The authorization hereby granted, however, shall not obligate Lender to make
such disbursement nor prevent Borrower from paying interest from its own funds.
5.00 AFFIRMATIVE COVENANTS.
5.01 Total Project Costs and Borrower's Obligations To Pay Costs in Excess of Loan Amount.
7
Borrower agrees and acknowledges that it is not intended, nor has the Lender agreed, to make a loan
hereunder to Borrower except in the amount and on the terms stated herein and that, under no
circumstances, has Lender agreed to make a Loan hereunder to Borrower that will necessarily be
adequate to pay for all costs incurred by Borrower in connection with construction of the
Improvements and completion of the project and related costs and expenses. Borrower and Lender
each recognize that certain known and anticipated costs and work on the project are not included in
the allocation of funds under the Loan, as set forth in more detail in Exhibit "B" hereto. Borrower
has represented to Lender that it intends to pay and hereby covenants with Lender that it will
promptly and fully pay for all such costs incurred in connection with the Improvements and the
project, and further covenants and agrees with Lender that it will promptly and fully pay for any other
unknown and unanticipated costs in connection with the project in excess of the amount of the Loan
hereunder from its own funds, without borrowing by way of secondary financing involving any
mortgage or other lien affecting the Land. However, Lender agrees that Borrower may provide other
collateral or a guaranty of payment to Lender in form and substance satisfactory to Lender to fund
the costs in excess of the amount of the Loan when due.
Borrower recognizes and agrees that, because the Loan is not intended to be and may not be
adequate to pay for all costs and expenses incurred by Borrower in connection with construction of
the Improvements, completion of the project and related costs and expenses, Lender is entitled to
assurance, and has required that at all times prior to the final disbursement under the Loan it be
assured that the undisbursed proceeds of the Loan shall, in Lender's opinion, be sufficient to pay for
all remaining costs for the items allocated in Exhibit "B" hereto (in total) and for any costs in
connection with the project not now known or anticipated, free and clear of all lien claims. Borrower
recognizes that, unless Lender has such assurances at any and all times during the course of the Loan
and prior to the final disbursement under the Loan, Lender will not be required to make and Borrower
shall not be entitled to request any disbursement under the Loan. Borrower shall furnish to Lender,
upon request, from time to time satisfactory assurances with supporting documentation of costs from
the construction contractor and Lender's construction inspector and/or verifications of its own
finances which demonstrate that the Loan is "in balance."
All monies disbursed to or for Borrower under the Loan are to be utilized only for paying then
current and unpaid bills, expenses, and costs directly related to the construction of the Improvements
and completion of the project, as allocated in Exhibit "B" hereto.
If, for any reason, Lender shall determine that, in its opinion, the Loan is not "in balance,"
Lender shall have no further obligation to make advances of Loan proceeds hereunder, unless
Borrower shall, within 1 0 days after the date of demand by Lender, deposit such amounts of funds
as Lender may require with Lender in order to place the Loan "in balance," as determined by Lender.
Borrower's failure to comply with such demand shall be an event of default. Such funds as Borrower
may deposit with Lender shall be disbursed in the manner hereinabove provided for advances of Loan
proceeds toward the costs of completing the Improvements and the project, and such funds of
Borrower will be utilized prior to any further utilization of Loan proceeds for such costs.
5.02 Construction of Improvements. Borrower agrees to cause the Improvements to be. .
constructed upon the Land and to have the same completed and ready for use, including all
approaches, services, utilities and other improvements in connection therewith, in accordance with
8
the plans and specifications, all governmental requirements and this Agreement. No change shall be
made in the construction contract or any other construction contracts or in the plans and
specifications and no "extras" will be ordered unless the change or "extras" first shall have been
approved by Lender in writing.
5.03 Time and Manner of Construction. Borrower shall cause the work of construction
of the Improvements to be commenced no later than May , 2000 and to be carried on
continuously and completed and a final Certificate of Occupancy for the Improvements (or its
equivalent) issued on or before May -----y 2002. Borrower and construction contractor shall comply
with all laws, ordinances, and applicable rules and requirements of public authorities applying to and
affecting the construction work and shall give the proper authorities all requisite notices relative to
such work and cause to be obtained all necessary licenses and permits with respect thereto without
cost or expense to Lender. In the event any necessary license or permit is revoked or threatened to
be revoked or subjected to attack by action before any court or other governmental agency having
jurisdiction, Lender may refuse to make further advances hereunder until such license or permit is
reinstated or such action before any court or other governmental agency having jurisdiction is
terminated; provided, however, in such event, at Lender's option and direction, Borrower shall be
obligated to cease work in completing the project or to continuously and diligently prosecute the
work of completing the Improvements in compliance with any required changes of such court or
other body even though in any such case Borrower may contest such changes, in which event Lender
will continue to fund construction pursuant to the terms hereof. If any such permit or license is
revoked and not reinstated within 30 days from the date of revocation, the Loan shall be deemed in
default.
5.04 Materials for Construction. All materials delivered upon the Land for the purpose of
being used in the construction of the Improvements shall be considered annexed thereto and shall
become a part of such Land as if actually incorporated in the Improvements and shall be subject, as
against Borrower and all parties acting or claiming under it, to the rights, conditions and covenants
to which the Land and the Improvements are subject under this Agreement. Nothing herein contained
shall be construed to make Lender responsible for any loss, damage or injury to such materials, nor
for payment for the same. During performance by or for Borrower of anything agreed by Borrower
to be done hereunder, Borrower shall not make or cause to be made any contract for materials or
equipment of any kind or nature to be incorporated in or to become a part of the Improvements if
title to such materials or equipment is reserved under a conditional sales contract or otherwise, or is
subject to a security interest in favor of a third person.
5.05 Lender's Construction Inspector. Borrower shall pay for all costs and fees of Lender' s
construction inspector, who will be employed by Lender to furnish the opinions and to make
inspections from time to time as to (a) test borings, (b) structural engineering, (c) work in progress,
(d) mechanical equipment, (e) cost estimates, (f) the plans and specifications and any modifications
and amendments thereto, including change orders, and (g) all matters pursuant to the construction
and completion of the project in conformance with the prior approved plans and specifications and
cost estimates and the applicable building and development permits, laws and ordinances.
5.06 Inspection. Borrower shall provide proper facilities at all times for inspection of the
Land and Improvements by Lender, and shall afford full and free access to the Land and the
9
Improvements and all plans, drawings and records thereof, to such persons, including the Lender's
construction inspector whose identity will be designated and may from time to time be changed in
writing by Lender. Within three working days after receiving notice from Lender or Lender's
construction inspector of the existence of defective construction, Borrower shall commence to correct
the same and to take down all portions of the Improvements which Lender may condemn as failing
to conform with the requirements of the plans and specifications. Borrower shall, at its expense,
make good all work and materials damaged thereby. In the event of any dispute between Borrower
and Lender with respect to the interpretation of the plans and specifications, the Lender's
construction inspector's decision shall be binding. Lender may at any time after default by Borrower
place upon the Land a superintendent or inspector whose duties and rights shall be to require that
the Improvements be constructed in accordance with the plans and specifications. Any such
inspection shall be solely for the benefit of Lender, and Borrower shall not be entitled to claim any
loss or damage as a result either of such inspections or the failure to make the same. Borrower shall
pay all costs and fees of such inspections for disbursement of funds therefor under the Loan.
5.07 Indemnification. Borrower agrees to protect, indemnify, defend and save harmless,
Lender and its directors, officers, agents and employees from and against any and all liability, expense
or damage of any kind or nature and from any suits, claims, or demands, including, without limitation,
reasonable legal fees and expenses on account of any matter or thing or action or failure to act of
Lender, whether in suit or not, arising out of this Loan Agreement or in connection herewith unless
said suit, claim or damage is caused by the gross negligence or willful malfeasance of Lender. This
indemnity is not intended to excuse Lender from performing hereunder. This obligation shall survive
the closing of the Loan and the repayment thereof.
5.08 Financial Statements. Borrower shall submit statements and balance sheets in
accordance with the requirements set forth in the Mortgage.
5.09 Costs and Attorneys' Fees. All costs and expenses, including reasonable attorneys'
fees, paid or incurred by the Lender in the enforcement or defense of this Agreement, including
proceedings in appellate courts, shall be paid by Borrower. "Attorneys' fees" shall include fees for
the attorneys' services whether outside or within judicial proceedings, including, without limitation,
Bankruptcy Court proceedings.
6.00 INSURANCE. The Borrower agrees to furnish such insurance as may be required
by the Lender, and expressly agrees that the Lender, without obligation to do so and from time to
time as the construction progresses, may place insurance on it at the expense of the Borrower for the
protection of the Lender in such amounts as may be needed fully to protect the Lender.
7.00 POWER TO COMPLETE. In the event ofthe death of the Borrower during the
period of construction, or upon any other occasion that might result in cessation of work prior to
completion, the Lender shall have full power to take charge of and complete the construction and
make disbursements against this loan for the benefit of the Borrower or the Borrower's estate, but
nothing in this contract shall be construed in any way as a covenant on the Lender's part to take over
and complete the construction.
10
8.00 LENDER LIABILITY.
A. TO THIRD PARTIES. This Agreement shall not be construed to make the
Lender liable to materialmen, contractors, craftsmen, laborers or others for goods or services
delivered by them in or upon the premises, or for debts or claims accruing to any such parties against
the Borrower. Nor shall the Lender be liable for the manner in which any disbursement under this
contract may be applied by Borrower and contractor, or either of them, or for any other compliance
with the Florida mechanics' lien law.
B. TO THE BORROWER. The Borrower has accepted, and does accept, the full
responsibility for the selection of his own contractor and subcontractors and all materials, supplies
and equipment to be used in the construction, and the Lender assumes no responsibility for the
completion of the building or buildings, according to the plans and specifications for the contract
price. Further, the Borrower has accepted and does accept full responsibility for compliance with the
Florida mechanics' lien law and relieves the Lender of any and all liability with respect to that law and
agrees to indemnifY and hold the Lender harmless from any and all liability under it of any nature
whatsoever. Anything contained in this contract to the contrary notwithstanding, there shall be no
obligation upon the Lender to make any additional disbursements, if at the time of the request for
such disbursements the Borrower is in default or has failed to perform any provision of this
Agreement or of the note and mortgage referred to above. .'
9.00 USE OF DISBURSEMENTS. The Borrower agrees that the proceeds of this loan
are to be used for the payment of material bills, labor and other uses and purposes in and for the
construction referred to above, to the extent necessary for their full payment.
10.00 SURVEY. The Borrower agrees to provide Lender with the following surveys, all
at Borrower's expense;
A. Prior to Lender making the first disbursement, Lender shall have received from
Borrower a survey showing the boundaries of the subject property, the location of all improvements,
easements, visible utilities, elevation contours existing on the subject property, any encroachments
on the subject property or any encroachments of the subject property on the adjoining, the acreage
or square footage of the subject property, set back requirements established by plat, deed restriction
or city or county ordinance and the ingress to and egress from subject property and all publicly
dedicated rights-of-way serving the subject property.
B. Prior to Lender's disbursing the final payment, Borrower shall deliver to Lender
final as-built survey containing all the information in Paragraph A above and showing the
improvements completed as constructed together with the elevations for such improvements.
All surveys shall be made, signed and certified by a Florida Professional Land Surveyor. All
surveys shall be certified to Lender and shall contain a certificate verifying that the survey meets the
minimum requirements of Chapter 21 HH-6, Florida Administration Code (as of the date of the
survey) and that the information set forth on the survey is true and correct. All surveys must be
otherwise acceptable to the Lender and Lender's attorney.
11
11.00 CERTIFICATE OF OCCUPANCY. Prior to Lender disbursing the final payment,
as defined in Exhibit "B", Borrower shall deliver to Lender an unqualified final Certificate of
Occupancy from the appropriate governmental authority for all of the improvements constructed
under this Construction Loan Agreement. For purposes of this paragraph, a Certificate of Occupancy
approving less than all of the Improvements shall not meet the requirements of this paragraph.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed, and
their seals to be hereunto affixed the day and year first above written.
THE CITY OF WINTER SPRINGS, a
municipal corporation
Attest:
By:
Name:
Title:
City Clerk
Name:
Title:
PAUL P. PARTYKA
MAYOR
WYMAN FIELDS FOUNDATION, INe.,
a Florida non-profit corporation
By:
ANTHONY PERRONE, President
Print Name:
Print Name:
12
, .
EXHIBIT liB"
DRAW SCHEDULE
To be provided by amendment to this Construction Loan Agreement at such
time as Borrower enters into a Construction Contract for the construction of the
Improvements.
13
r~
"
CERTIFIED CORPORATE RESOLUTION FOR
BORROWING AUTHORIZATION
I, the undersigned, hereby certify to THE CITY OF WINTER SPRINGS, FLORIDA, a Florida
municipal corporation, that I am ANTHONY PERRONE, President of WYMAN FIELDS FOUNDATION,
INC, a Florida non-profit corporation, a corporation duly organized and existing under the laws of the State of
Florida; and in good standing and fully authorized to transact business in the State of Florida; that the following is
a true copy of Resolutions duly adopted by the Board of Directors of said Corporation at its meeting duly held on
the day of May, 2000, at which a quorum was present and acted throughout; and that such Resolutions are
in full force and effect, have not been amended or rescinded, and that there is not provision in the Articles of
Incorporation, Charter or By-Laws of said Corporation limiting the power of the Board of Directors of said
Corpordtion to pass the following Resolutions, which are in full conformity with the provisions of said Articles of
Incorporation, Charter and By-Laws:
1. RESOLVED, that the present holder of the following offices and/or positions of this Corporation,
to wit: ANTHONY PERRONE, President, is hereby authorized, on behalf of, in the name of and for the account
of this Corporation, upon such terms and conditions as he deems desirable, to borrow money and obtain or continue
credit (with or without security) from THE CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal
corporation (hereinafter termed the "Lender"), in such amounts as he deems desirable, to guarantee the obligations
of others to the Lender, to engage in business transactions of all nature and kind and/or to enter into all manner and
kinds of contractual relationships with said Lender; and
2. RESOLVED FURTHER, that (without limiting the generality of the above resolutions) the above
identified or described officers or representatives of this Corporation are herewith expressly authorized (on behalf
of, in the name of and for the account of this Corporation; and on behalf of, in the name of and for the account of
subsidiary, parent and affiliated corporations): To pledge, assign, grant a security or other interest in, encumber
or mortgage (as security for payment or performance of any existing or hereafter arising or contracted liabilities or
obligations of said Corporation and of subsidiary, parent and affiliated corporations to said Lender), and/or to sell,
assign or discount (with or without recourse) any acceptances, accounts, chattel paper, checks, drafts, contracts,
contract rights, choses in action, general intangibles, instruments, investment securities, land contracts, deeds of
trust, security deeds, real estates mortgages, security agreement, purchase money security agreements (conditional
sale contracts of real and/or personal property), real and/or personal property leases, real, personal or mixed
property of said Corporation, bonds, certificates of deposit, moneys now or hereafter on deposit with said Lender
or any other financial institution, or any other property and/or other instruments or evidences of indebtedness
payable to, owned or held by this Corporation to said Lender; to execute and/or endorse all of the foregoing
documents and any documents as may be necessary or required by said Lender to evidence or consummate any such
indebtedness, business transactions and/or contractual relationships; and/or to lease and/or purchase real, personal
and/or mixed property from said Lender; and
3. RESOLVED FURTHER, that the Secretary of this Corporation shall, from time to time hereafter,
as changes in the personnel of said offices, positions, officers, representatives and/or employees of this Corporation
named or described in the foregoing Resolutions are made, immediately certify such changes to said Lender. Said
Lender shall be fully protected in relying upon such certifications of the Secretary and shall be indemnified and saved
hannless from any claims, demands, expenses, losses and/or damages resulting from, or growing out of, honoring
the signature of any officer(s), representative(s), agent(s), or employee(s) so certified, or refusing to honor any
signature not so certified which is not described or stated in the foregoing Resolutions; and
4. RESOLVED FURTHER, that the Secretary of tllis Corporation is authorized and directed to certify
to said Lender that the foregoing Resolutions were duly adopted, and that the provisions thereof are in full
conformity with the Articles of Incorporation, Charter and By-Laws of this Corporation; and
5. RESOLVED FURTHER, that all transactions by any officers, representatives, employees or agents
of this Corporation, on its behalf and in its name with the Lender prior to delivery of a certified copy of the
foregoing Resolutions are, in all respects, hereby ratified, confirmed and adopted, nunc pro tunc.
I, finally, certifY that the following is the person who now holds the offices and/or positions referred to in
the first Resolution above and that his bona fide signature is set forth below:
Signature:
ANTHONY PERRONE, President
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the Seal of this Corporation,
this day of May, 2000.
ANTHONY PERRONE, President
INSURANCE ANTI-COERCION STA TE:MENT
THE FOLLOWING STATEMENT IS REQUIRED UNDER RULE 4-124.002 OF THE
RULES AND REGULATIONS PROMULGATED BY THE INSURANCE
COMMISSIONER RELATIVE TO ANTI-COERCION
The Insurance Laws of this state provide that the Lender may not require the Borrower to take insurance
through any particular insurance agent or company to protect the mortgaged property.
The Borrower, subject to the rules adopted by the Insurance Commissioner, has the right to have the
insurance placed with an accurate agent or company of his choice, provided such agency meets the
requirements of the Lender. The Lender, however, has the right to designate reasonable financial and
experience requirements as to the company and the adequacy of the coverage.
If the selection of insurance agent or company is not mutually agreeable, then the Lender shall furnish the
Borrower a copy of the rules and regulations promulgated by the Insurance Commissioner governing the
placing of such insurance.
We have read the foregoing statement, or the rules of the Insurance Commissioner, relative thereto, and
understand my rights and privileges and those of the Lender relative to the placing of such insurance.
We have selected to write the Builder's Risk, fire and
extended coverage covering the property described on Exhibit "A" attached hereto.
May _, 2000
WYMAN FIELDS FOUNDATION, INC.,
a Florida non-profit corporation
By:
ANTHONY PERRONE, President
MORTGAGOR'S AFFIDAVIT
STATE OF FLORIDA
COUNTY OF BREVARD
BEFORE ME, the undersigned Notary Public, appeared ANTHONY PERRNE (hereinafter U Affiant"),
personally known to me who having been first duly sworn according to law, deposes and says, as follows, to-wit:
1. That the Affiant is the President of WYMAN FIELDS FOUNDATION, INC., a Florida
Corporation ("Corporation"), and as such has personal knowledge of the matters noted herein.
2. Corporation is currently the fee simple owner of tlle land described in the Lawyers Title Insurance
Corporation. Commitment, attached hereto and incorporated by reference, bearing Commitment No. 2-0003083,
and described in that certain Mortgage given by the Corporation to THE CITY OF WINTER SPRINGS, FLORIDA.
(uLender") for $782,071.00 dated of even date herewith, which will constitute a valid final lien upon said property
when recorded in the public records.
3. Affiant is aware of no defects, liens, encumbrances, or other adverse matters affecting title, other
than those disclosed in the attached Commitment.
4. That no persons other than the Corporation are entitled to tlle right of possession or is in possession
of the land, and that the Corporation's right to title and possession of the land are not in dispute or question.
5. Corporation has no present intention of filing bankruptcy under the U.S. Code, or insolvency under
any state statutes, and is not currently in bankruptcy or the subject of a state insolvency statute.
6. That no work has been done or materials furnished to the land for the past ninety (90) days which
could give rise to construction liens being imposed under the provisions of Florida Statutes Chapter 713 Part I.
7. Corporation is aware that LAWYERS TITLE INSURANCE CORPORATION. is relying upon
this Affidavit to issue title insurance policies in accordance with the aforesaid Commitment, and that in its normal
course of business may be called upon to issue additional title insurance policies. Corporation does hereby
indemnify LAWYERS TITLE INSURANCE CORPORATION against any loss or damage caused as a result of any
inaccuracies contained in this Affidavit.
8. . That this Affidavit is made for the purpose of inducing the Bank to make the Loan and is being
relied upon by Kohn Bennett, Esquire, and Amari & Theriac, P.A., 96 Willard Street, Suite 302, Cocoa, Florida
32922, in representing the Bank in the subject transaction, and is also made to induce LAWYERS TITLE
INSURANCE CORPORATION to insure the validity and priority of the lien of the above described Mortgage.
Affiant has caused this Affidavit to be executed this _ day of May, 2000.
WYMAN FIELDS FOUNDATION, INC.
By:
ANTHONY PERRONE, President
- ., I .
['
The foregoing instrument was acknowledged before me this _ day of May, 2000, by ANTHONY
PERRONE, President, of WYMAN FIELDS FOUNDATION, INC., who is personally known to me or who
produced as identification.
NOTARY PUBLIC
2
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LAWYERS TITLE INSURANCE CORPORATION
NATIONAL HEADQUARTERS
RICHMOND, VffiGINIA
COMMITMENT FOR TITLE INSURANCE
SCHEDULE A
1. EFFECTIVE DATE: April 25, 2000 at 5:00 P.M.
CASE NO. 2-0003083
2. POLICY OR POLICIES TO BE ISSUED:
(a)
AMOUNT $
ALTA OWNER'S POLICY, FORM B 1992 (10-17-92) WITH FLORIDA MODIFICATIONS:
PROPOSED INSURED:
NONE
(b)
AMOUNT $ 782,071.00
ALTA LOAN POLlCY, 1992 (10-17-92) WITH FLORIDA MODIFICATIONS:
PROPOSED INSURED:
THE CITY OF WINTER SPRINGS, FLORIDA
(c)
AMOUNT $
NONE
3. TITLE TO THE FEE SIMPLE ESTATE OR INTEREST IN THE LAND DESCRIBED OR REFERRED
TO IN THIS COMMITMENT IS AT THE EFFECfIVE DATE HEREOF VESTED IN:
WYMAN FIELDS FOUNDATION, INC., a Florida corporation
4. THE LAND REFERRED TO IN TIllS COMMITMENT IS DESCRIBED AS FOLLOWS:
SEE ATTACHED EXHIBIT A
COUNTERSIGNED AT ~~ARK' FLORIDA
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5/4/Z000 (DRP)
Commitment No. 2-0003083
Schedule A - Page 1
Authorized Officer or Agent
TIDS COMMITMENT IS INVALID UNLESS THE INSURING PROVISIONS AND SCHEDULES A AND
B ARE ATTACHED.
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EXHmlT A
PARCEL 6
Lots 1 and 8, PINEWOOD TERRACE, according to the Plat thereof, as recorded in Plat Book
29, Page 36, Public Records of Seminole County, Florida.
PARCEL 7
Lots 2 through 7, inclusive, PINEWOOD TERRACE, according to the Plat thereof, as
recorded in Plat Book 29, Page 36, Public Records of Seminole County, Florida.
PARCEL12G
Parcel located in D.R. MITCHELL'S SURVEY OF THE MOSES E. LEVY GRANT,
according to the Plat thereof, as recorded in Plat Book 1, Page 5,Public Records of Seminole
County, Florida, and described as follows:
Commence at the intersection of the East right of way line of Moss Road with the centerline of
Longwood-Oviedo Road as shown on the plat of NORTH ORLANDO, according to the Plat
thereof, as recorded in Plat Book 12, Pages 10 and 11, Public Records of Seminole County,
Flor~ida; thence run North 06 degrees 55 minutes 33 seconds West along the East right of way
line of said Moss Road, 532.84 feet to the point of curvature of a curve, concave Easterly,
having a radius of 676.78 feet; thence Northeasterly, 301.32 feet along the arc of said curve
through a central angle of25 degrees 30 minutes 34 seconds to a point on said curve for the
POINT OF BEGINNING; thence from a tangent bearing of North 18 degrees 35 minutes 01
seconds East continue 77.21 feet along the arc of the aforesaid curve through a central angle 06
degrees 32 minutes 11 seconds to the point of tangency thereof; thence North 25 degrees 07
minutes 12 seconds East, 124.01 feet; thence South 72 degrees 06 minutes 34 seconds East
74.06 feet; thence South 17 degrees 53 minutes 26 seconds West, 200.00 feet; thence North
72 degrees 06 minutes 34 seconds West 95.00 feet to the POINT OF BEGINNING.
PARCEL 12K
Parcel located in D.R. MITCHELL'S SURVEY OF TIIE MOSES E. LEVY GRANT,
according to the plat thereof, as recorded in Plat Book 1, Page 5, of the Public Records of
Seminole County, Florida, and described as follows:
Commence at the intersection of the East right of way line of Moss Road with the centerline of
Longwood-Oviedo Road as shown on the plat of NORTH ORLANDO, according to the Plat
thereof, as recorded in Plat Book 12, Pages 10 and 11, Public Records of Seminole County,
Florida; thence run North 06 degrees 55 minutes 33 seconds West along the East right of way
line of said Moss Road, 532.84 feet to the point of curvature of a curve, concave Easterly,
having a radius of 676.78 feet; thence Northeasterly, 301.32 feet along the arc of said curve
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through a central angle of 25 degrees 30 minutes 34 seconds to a point on said curve for the
POINT OF BEGINNING~ thence from a tangent bearing of North 18 degrees 35 minutes 01
seconds East continue 77.21 feet along the arc of the aforesaid curve through a central angle 06
degrees 32 minutes 11 seconds to the point of tangency thereof~ thence North 25 degrees 07
minutes 12 seconds East, 124.01 feet; thence South 72 degrees 06 minutes 34 seconds East
74.06 feet; thence South 17 degrees 53 minutes 26 seconds West, 200.00 feet~ thence North 72
degrees 06 minutes 34 seconds West 95.00 feet to the POINT OF BEGINNING.
PARCEL 12L
Parcel located in D.R. MITCHELL'S SURVEY OF THE MOSES E. LEVY GRANT,
according to the plat thereof, as recorded in Plat Book 1, Page 5, of the Public Records of
Seminole County, Florida, and described as follows:
Commence at the intersection of the East right of way line of Moss Road with the centerline of
Longwood-Oviedo Road as shown on the plat of NOR11I ORLANDO, according to the Plat
thereof, as recorded in Plat Book 12, Pages 10 and 11, Public Records of Seminole County,
Florida~ thence run North 06 degrees 55 minutes 33 seconds West along the East right of way
line of said Moss Road, 532.84 feet to the point of curvature of a curve, concave Easterly,
having a radius of 676.78 feet; thence Northeasterly, 301.32 feet along the arc of said curve
through a central angle of 25 degrees 30 minutes 34 seconds to a point on said curve for the
POlNT OF BEGlNNING; thence from a tangent bearing of North 18 degrees 35 minutes 01
seconds East continue 77 .21 feet along the arc of the aforesaid curve through a central angle 06
degrees 32 minutes 11 seconds to the point of tangency thereof; thence North 25 degrees 07
minutes 12 seconds East, 124.01 feet; thence South 72 degrees 06 minutes 34 seconds East
74.06 feet; thence South 17 degrees 53 minutes 26 seconds West, 200.00 feet; thence North 72
degrees 06 minutes 34 seconds West 95.00 feet to the POINT OF BEGINNING.
PARCEL 12M
Parcel located in n.R. MITCHELL'S SURVEY OF THE MOSES E. LEVY GRANT,
according to the plat thereof, as recorded in Plat Book 1, Page 5, of the Public Records of
Seminole County, Florida, and described as follows:
Commence at the intersection of the East right of way line of Moss Road with the centerline of
Longwood-Oviedo Road as shown on the plat of NORTH ORLANDO, according to the Plat
thereof, as recorded in Plat Book 12, Pages 10 and 11, Public Records of Seminole County,
Florida; thence run North 06 degrees 55 minutes 33 seconds West along the East right of way
line of said Moss Road, 532.84 feet to the point of curvature of a curve, concave Easterly,
having a radius of 676.78 feet; thence Northeasterly, 301.32 feet along the arc of said curve
through a central angle of 25 degrees 30 minutes 34 seconds to a point on said curve for the
POINf OF BEGlNN1NG; thence from a tangent bearing of North 18 degrees 35 minutes 01
seconds East continue 77.21 feet along the arc of the aforesaid curve through a central angle 06
degrees 32 minutes 11 seconds to the point of tangency thereof; thence North 25 degrees 07
minutes 12 seconds East, 124.01 feet; thence South 72 degrees 06 minutes 34 seconds East
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74.06 feet; thence South 17 degrees 53 minutes 26 seconds West, 200.00 fect; thence North 72
degrees 06 minutes 34 seconds West 95.00 feet to the POINT OF BEGINNING.
PARCEL 12N
Parcel located in D.R. WTCHELL'S SURVEY OF Tlffi MOSES E. LEVY GRANT,
according to the plat thereof, as recorded in Plat Book 1, Page 5, of the Public Records of
Seminole County, Florida, and described as follows:
Commence at the intersection of the East right of way line of Moss Road with the centerline of
Longwood-Oviedo Road as shown on the plat of NORTH ORLANDO, according to the Plat
thereof, as recorded in Plat Book 12, Pages 10 and 11, Public Records of Seminole County,
Florida; thence run North 06 degrees 55 minutes 33 seconds West along the East right of way
line of said Moss Road, 532.84 feet to the point of curvature of a curve, concave Easterly,
having a radius of 676.78 feet; thence Northeasterly, 301.32 feet along the arc of said curve
through a central angle of 25 degrees 30 minutes 34 seconds to a point on said curve for the
POINT OF BEGINNING; thence from a tangent bearing of North 18 degrees 3S minutes 01
seconds East continue 77.21 feet along the arc of the aforesaid curve through a central angle 06
degrees 32 minutes 11 seconds to the point of tangency thereof; thence North 25 degrees 07
minutes 12 seconds East, 124.01 feet; thence South 72 degrees 06 minutes 34 seconds East
74.06 feet; thence South 17 degrees 53 minutes 26 seconds West, 200.00 feet; thence North 72
degrees 06 minutes 34 seconds West 95.00 feet to the POINT OF BEGINNING.
SCHEDULE A - PAGE 2
COMMITMENT NO. 2-0003083
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SCHEDULE B-SECTlON 1
REQUIREMENTS
THE FOLLOWING ARE THE REQUIREMENTS TO BE COMPLIED WITH:
ITEM (a) PAYMENT TO OR FOR THE ACCOUNT OF THE GRANTORS OR MORTGAGORS OF THE
FULL CONSIDERA nON FOR THE ESTATE OR INTEREST TO BE INSURED.
ITEM (b) PROPER INSTRUMENT(S) CREATING THE ESTATE OR INTEREST TO BE INSURED MUST
BE EXECUTED AND DULY FILED Of' RECORD TO WIT:
1. Mortgage from WYMAN FIELDS FOUNDATION, INC., a Florida corporation, to
THE CITY OF WINTER SPRINGS, FLORIDA, securing the principal sum of the
loan.
Item (c)
The following exception and affirmative coverage shall be included in the loan
policy when issued:
"Company insures the insured againslloss or damages, including costs
and attorneys fees, as a result of any liens or claims of liens for services,
labor or material which may take priority over the estate or interest
insured herein by reason of the Notices of Commencement recorded in
Official Records Book 382R, Page 16; Official Records Book 3828, page
1494; Official Records Book 3828, Page 1496; Official Records Book
3828, Page 1498; Official Records Book 3828, Page 1500; Official
Records Book 3828, Page 1502; Official Records Book 3828, Page
1504; Official Records Book 3828, Page 1506; Official Records Book
3828, Page 1508; Official Records Book 3828, Page 1510; Official
Records Book 3828, Page 1512; Official Records Book 3828, Page
1514; Official Records Book 3828, Page 1516; Official Records Book
3828, Page 1518; and Official Records Book 3834, Page 1887, all of the
Public Records of Seminole County, Florida."
If the following requirements are met for each ofthe Notices of
Commencement:
(a) Execution and recordation of valid Notices of Termination.
- - ... - - --- -
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(b) Affidavit satisfactory to the Company from owner or
ownerlbuilder that all materialmen and laborers have been paid
must be furnished,
(c) Affidavit satisfactory to the Company from contractor(s) that all
materialmen and laborers have been paid must be furnished.
(d) Releases satisfactory to the Company from all materialmen and
laborers who have supplied materials and/or worked on the land
must be furnished,
(d) LTIC Indemnity Form 90-115, executed by the owner, and any
other party requested by the Company, must be furnished,
together with financial information from all indemnitors, which
financial information must be deemed by the Company to
establish that the Indemnity represents security commensurate
with such risk.
Item (d)
LAWYERS TITLE INSURANCE CORPORATION must be furnished with
satisfactory evidence showing that WYMAN FIELDS FOUNDATION, INC., is
a Florida corporation in good standing.
THIS COMMITMENT IS INV ALlD UNLESS
THE INSURING PROVISIONS AND
SCHEDULES A AND B ARE ATTACHED.
SCHEDULE B-SECTlON I-PAGE I
COMMITMENT NO. 2-0003083
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SCHEDULE B--SECTION 2
EXCEPTIONS
THE POLICY OR POLICIES TO BE ISSUED WILL CONTAIN EXCEPTIONS TO THE FOLLOWING
UNLESS THE SAME ARE DISPOSED OF TO THE SATISFACTION OF THE COMPANY.
1. Defects, liens, encumbrances, adverse claims or other matters, if any, created, [rrst
appearing in the public records or attaching subsequent to the effective date hereof but
prior to the date the proposed insured acquires for value of record the estate or interest
or mortgage thereon covered by this Commitment.
2. Taxes for the year 2000 and any taxes and assessments levied or assessed subsequent to
the effective date hereof, and taxes or assessments which are not shown as existing
liens by the public records.
NOTE:
Real estate taxes for the year 1999 have been paid.
3. Any state of facts which an accurate surveyor a personal inspection of the premises
might disclose, including easements and claims of easements not shown by the public
records.
4. Any lien, or right to a lien, for services, labor or material heretofore or hereafter
furnished, imposed by law and not shown by the public records.
5. Rights of parties in possession of the premises other than the record owner.
6. Restrictions, covenants, conditions and easements, which include provisions for a
private charge or assessment, as contained in the Declaration (contains party wall
provisions) recorded in Official Records Book 1516, Page 368, Public Records of
Seminole County, Florida (as to Parcels 6 and 7).
7. By-Laws of Pinewood Terrace Homeowners Association, Inc., recorded in Official
Records Book 1518, Page 1053 368, Public Records of Seminole County, Florida (as to
Parcels 6 and 7).
8. Articles of Incorporation of PINE WOOD TERRACE HOMEOWNERS
ASSOCIATION, INC., recorded in Official Records Book 1516, Page 384, Public
Records of Seminole County, Florida (as to Parcels 6 and 7).
THlS COMMITMENT IS lNV ALlD UNLESS
THE INSURING PROVISIONS AND
SCHEDULES A AND B ARE A TI ACHED
SCHEDULE B-SECTION 2-PAGE 1
COMMITMENT NO. 2-0003083
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9. Subject to all mattes as set forth and reserved on the Plat of PINE WOOD TERRACE,
recorded in Plat Book 29, Page 36, Public Records of Seminole County, Florida (as to
Parcels 6 and 7).
10. Cable Television Installation Agreement recorded in Official Records Book 1492, Page
1896, Public Records of Seminole County, Florida (as to Parcels 6 and 7).
11. Cross Access Easement recorded in Official Records Book 1516, Page 362, Public
Records of Seminole County, Florida (as to Lots 2 and 3 of Parcel 7).
12. Cross Access Easement recorded in Official Records Book 1516, Page 364, Public
Records of Seminole County, Florida (as to Lots 4 and 5 of Parcel 7).
13. Cross Access Easement recorded in Official Records Book 1516, Page 366, Public
Records of Seminole County, Florida (as to Lots 6 and 7 of Parcel 7).
14. Distribution Easement recorded in Official Records Book 1249, Page 579, , Public
Records of Seminole County, Florida (as to Parcels 6 and 7).
15. Distribution Easement recorded in Official Records Book 1842, page 1774, Public
Records of Seminole County, Florida.
16. Access to Parcel K is by and through Parcel 12G.
17. Access to Parcel12L is by and through Parcel 12 G and 12K.
18. Access to Parcel 12M is by and through Parcels 12G, 12K and 12L.
19. Access to Parcel12N is by and through Parcels 12G, 12K, 12L and 12M.
THIS COMMITMENT IS INVALID UNLESS
THE INSURING PROVISIONS AND
SCIJEDULESA AND BAREAITACHED
SCHEDULE B-SECfION 2-PAGE 2
COMMITMENT NO. 2-0003083
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20. The following matters shown on the Survey prepared by Beale Smith Associates, Inc.,
dated June 1, Survey No. 16916-1 (as to Lot 1 of Parcel 6):
a) Concrete Drive encroachment into Southerly and Easterly utility easements.
b) Concrete walk encroachments into Northerly utility easement.
c) Concrete wall encroachments into Westerly and Southerly drainage easements.
d) Concrete wall encroachment into Westerly utility easement.
e) Concrete drive encroachment into Southerly and Easterly drainage easements.
21. The following matters shown on the Survey prepared by Beale Smith Associates, Inc.,
dated June 1, 1999 under Survey No. 16916-8 (as to Lot 8 of Parcel 6):
a) Concrete drive encroachment into the Easterly utility easement.
b) Concrete walk encroachment into the Southerly utility easement.
c) Sign encroachment into Southwest comer of lot.
22. The following matters shown on the Survey prepared by Beale Smith Associates, Inc.,
dated June 1, 1999 under Survey No. 16916-2 (as to Lot 2 of Parcel 7):
a) concrete drive encroachment into Northeasterly utility and cross access
easements.
b) Concrete walk encroachments into front utility easement.
THIS COMMITMENT IS INV ALlD UNLESS
THE INSURING PROVISIONS AND
SCHEDULES A AND 8 ARE ATfACHED
SCHEDULE B-SECTION 1-PAGE 3
COMMITMENT NO. 1-0003083
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23. The following matters shown on the Survey prepared by Beale Smith Associates, Inc.,
dated June 1, 1999 under Survey No. 16916-3 (as to Lot 3 of Parcel 7):
a) Concrete drive encroachment into the front, rear and Southwesterly utility
easements.
b) Concrete drive encroachment into the Southwesterly cross access easement.
c) Concrete walks encroachment into front utility easement.
d) Metal shed encroachment onto adjoining property on the Southeast.
24. The following matters shown on the Survey prepared by Beale Smith Associates, Inc.,
dated June 1, 1999 under Survey No. 16916-4 (as to Lot 4 of Parcel 7):
a) Concrete drive encroachment into the Westerly and Northerly utility easement.
b) Fence encroachment along the Easterly line of subject property and into the
Easterly utility easement.
25. The following matters shown on the Survey prepared by Beale Smith Associates, Inc"
dated June 1, 1999 under Survey No. 16916-5 (as to Lot 5 of Parcel 7):
a) Concrete drive encroachment into the front and Southerly utility easement and
Southerly cross access easement.
b) Fence encroachment along the Northerly and Easterly lot lines and into the
Northerly and Easterly utility easements.
THIS COMMITMENT IS INVALID UNLESS
mE INSURING PROVISIONS AND
SCHEDULES A AND BAREATfACHED
SCHEDULE B-SEC'TION 2-PAGE 4
COM~nTMENT NO. 2-0003083
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26. The following matters shown on the Survey prepared by Beale Smith Associates, Inc.,
dated June 1, 1999 under Survey No. 16916-6 (as to Lot 6 of Parcel 7):
a) Concrete drive encroachment into the front, rear and Westerly side utility
easements.
b) Concrete drive encroachment into the Westerly cross access easement.
c) Concrete walk encroachment into the front utility easement and front cross
access easement.
d) Fence encroachment along the Northerly line and into the Northerly utility
easements.
27. The following matters shown on the Survey prepared by Beale Smith Associates, Inc.,
dated June 1, 1999 under Survey No. 16916-7 (as to Lot 7 of Parcel 7):
a) Concrete drive encroachment into the front and easterly utility easements.
b) Concrete wall encroachment along the Northerly line and into the Northerly
utility easements.
28. The following matters shown on the Survey prepared by Beale Smith Associates, Inc.,
dated June 18, 1999 under Survey No. 16971-1 (as to Parce112G):
a) Drainage ditch on North.
b) Fence encroachment along the Northerly lot line.
29. The following matters shown on the Survey prepared by Beale Smith Associates, Inc.,
dated June 18, 1999 under Survey No. 16971-2 (as to Parcel 12K):
a) Drainage ditch on North.
b) Fence encroachment along the Northerly line.
c) Underground electrical utilities on Easterly line.
THIS COMMITMENT IS INV ALlD UNLESS
THE INSURING PROVISIONS AND
SCHEDULES A AND B ARE ATTACHED
SCHEDULE B-SECTION 2-PAGE S
COMMITME1'IT NO. 2~OO3083
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30. The following matters shown on the Survey prepared by Beale Smith Associates, Inc.,
dated June 18, 1999 under Survey No. 16971-3 (as to Parcel 12L):
a) Drainage ditch on North.
b) Fence encroachment along the Northerly line.
e) Underground electrical utilities on Westerly line.
31. The following matters shown on the Survey prepared by Beale Smith Associates, Inc.,
dated June 18, 1999 under Survey No. 16971-4 (as to Parcel 12M):
a) Drainage ditch and swale on the North and East.
b) Fence encroachment along the Northerly line.
e) Underground electrical utilities on Easterly line.
32. The following matters shown on the Survey prepared by Beale Smith Associates, Inc.,
dated June 18, 1999 under Survey No, 16971-5 (as to Parcel 12N):
a) Fence encroachment along the Northerly and Easterly lines.
b) Parking area encroachment onto adjoining property on South.
33. Mortgage and Security Agreement dated April 3, 20000, recorded in Official Records
Book 3834, Page 1859, Public Records of Seminole County, Florida.
34. UCC-l Financing Statement recorded ApriI1?, 2000, in Official Records Book 3834,
Page 1881, Public Records of Seminole County, Florida.
THIS COMMITMENT IS )NV ALlD UNLESS
THE INSURING PROVISIONS AND
SCHEDULESA AND BARE ATTACHED
SCHEDULE B-SECfION 2-PAGE 6
COMMITMENT NO. 2-0003083
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35. Assignment of Lessor's Interest in Rents and Leases recorded April 17,2000, in
Official Records Book 3834, Page 1893, Public Records of Seminole County, Florida.
NOTE:
The Company may make other requirements or exceptions upon its
review of the proposed documents creating the estate or interest to be
insured or otherwise ascertaining detains of this transaction.
NOTE: Unless otherwise stated, all orthe above mentioned instruments are recorded in the Public Records
or Seminole County, Florida.
NOTE: IF POLlCY IS TO BE ISSUED IN SUPPORT OF A MORTGAGE LOAN. ATIENTlON IS DIRECTED TO THE FACT
THAT THE COMPANY CAN ASSUME NO LIABILITY UNDER ITS POLlCY. THE CLOSING INSTRUCTIONS, OR
INSURED CLOSING SERVICE FOR COMPUANCE WITH THE REQUIREMENTS OF ANY CONSUMER CREDIT
PROTECTION OR TRUTH IN LENDING LAW IN CONNECTION WITH SAID MORTGAGE LOAN.
THIS COMMITMENT IS INVALID UNLESS
THE INSURING PROVISIONS AND
SCHEDULES A AND BARE AITACHED
SCHEDULE B-SECTION 2-PAGE 7
COMMITMENT NO. 1-0003083
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In accordance with Florida Statutes Section 627.4131, please be advised that the
insured hereunder may present inquiries, obtain information about coverage, or receive
assistance in resolving complaints, by contacting the Land America Financial Group.
Inc. Regional Office, 1901 West Colonial Drive, Orlando, FL 32804. Telephone: (407)
425-6121.
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Walk to Schools, Shopping, Parks
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oss Cove
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Moss Cove Town Homes
For Sale
Large Two Bedroom/One and Half Bath
Town Homes
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Living Area 952 Sq Ft
Non Ale S ace "!' <80 S Ft
Total Area . . 1.0,3() Sq Ft
Bedroom 2 .
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VVyman Fields, Foundation, Inc,
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Trovillion & Daughe~ Inc.
" Real Estate Sales
Home Ownership & Mortgage. Experts, Inc.
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