Grey Oaks, Unit 9, Terra Verde M E M O R A N D U M
DATE: May 20, 1998
TO: Maureen Kenyon, Supervisor, Clerk to Board
FROM: Shirley Nix, Engineering Technician II~
Project Plan Review
RE: Grey Oaks, Unit 9, Terra Verde
Sewer Facilities Acceptance
Recording Fee Number 113-138312-649030
On /~/~/~// 'Z ~ , l~.9~6~/The Board of County Commissioners
gra~ted final acceptance of the water and/or sewer facilities
within the above-referenced project.
Attached, please find the following recorded, in order:
1. Bill of Sale
2. Utilities Facilities Warranty Deed
Also, please find attached the following documents for your
files.
o
10.
11.
Owner's Affidavit
Attorney's Affidavit
Copy of preliminary approval letter from Engineering
Review
Copy of certified check and receipt for maintenance
bond
Engineer's final payment confirmation
Bacteriological clearances (DER certification) for
water facilities
DER Placement-in-Service letter for sewer facilities
Contractor's Final Release of Lien
Verification of final cost (Detailed: quantities,
sizes, unit cost, total cost, etc.)
Memorandum to Maureen Kenyon,
May 20, 1998
Page Two
Supervisor, Clerk to Board
12.
Letter by Engineer certifying that all water and/or
sewer facilities are located within the public
right-of-way or dedicated easements
13.
Contractual Guarantee for material and workmanship for
a period of at least one year after the Board of County
Commissioners' acceptance for both water and sewer
facilities
14. Copy of fire flow capacity by Engineer of Record
15.
Certification of the inflow/infiltration test for the
sewer lines by Engineer of Record
16.
Coating certification of man holes, wet wells and dry
well from manufacturer
17. Copy of video tape test report
18.
Letter from Compliance Services section certifying that
the final inspection reveals that the Utility
facilities have been constructed in accordance with
County ordinances and regulations
19. One copy of the recorded plat
20.
One set of record drawings, signed and sealed by the
Engineer of Record
If you have any questions, please call and advise accordingly.
/sm
attachments
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FOR USE BY
CLERK OF COURT:
2323882 OR: 2423 PG: 1097
RECORDED in 0FHCIAL RECORDS of COLLIER COUNTY, FL
05/26/98 at 08:36AM DWIGHT E. BROCK, CLERK
HC ~EE 15.00
Retn:
SHIRLEY NIX
~x? 5586
BILL OF SALE
GREY OAKS UNIT NINE
TltlS BILL OF SALE evidencing the s~eAan, d cg!!ygyance of the sewer utility facilities
described herein is made this (~ day of De_c-~_~/',/ ~7, by TERRA VERDE AT GREY
OAKS, LTD., a Florida Limited Partnership (hereinafter referred to as "Seller"), and the
BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS THE
GOVERNING BODY OF COLLIER COUNTY AND AS EX-OFFICIO THE GOVERNING
BOARD OF THE COLLIER COUNTY WATER-SEWER DISTRICT, its successors and
assigns, (hereinafter referred to as "Buyer").
WITNESSETH:
That said Seller, for and in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration to said Seller in hand paid by the said Buyer, the receipt
whereof is hereby acknowledged, has granted, bargained, sold, transferred, set over and
delivered, and by these presents does grant, bargain, sell, transfer, set over and deliver unto the
Buyer, and the Buyer's heirs, successors and assigns forever, all those certain sewer utility
facilities lying within the following described land, together with appurtenant easement rights
for the operation, installation and maintenance of said facilities, situate, lying and being in
Collier County, Florida, to wit:
(See Exhibit "A" attached hereto and
incorporated by reference herein)
The Seller, for itself and its successors, hereby covenants to and with the Buyer and its
successors and assigns that it is the lawful owner of the said goods and chattels herein referred
to as utility facilities; that said goods and chattels are free from all liens and encumbrances; that
it has good right, rifle and authority to sell same, and that it will warrant and defend the same
against the lawful claims and demands of all persons whomsoever. Seller and Buyer are used
for singular or plural, as the context requires.
OR: 2423 PG: 1098
In Witness Whereof, Seller has caused these presents to be executed the date and year first
above written.
Signed and delivered
in our presence:
~itness
Print Name:
TERRA VERDE AT GREY OAKS LTD., a
Florida Limited Partnership, by its General Partner,
Nicholas-t~gpherd, President
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this (r~ day of
'~"c,.v~oo.v'q , 199t$, by Nicholas Shepherd, President of Florida Bay, Inc., a Florida
corporation~t~s General Partner of Terra Verde at Grey Oaks, Ltd., a Florida Limited Partnership, who
is personally known to me and who did take an oath.
Mya~mmissioMExpires: I~ .~'~]' ~ m,,.,.~
This Instrument Prepared By:
KatMeen C. Passidomo, Esq.
Kelly, Price, Passidomo & Siket
2640 Golden Gate Parkway
Suite//315
Naples, Florida 34105
(941) 261-3453
2
*** OR: 2423 PG: 1099 ***
LEGAL DESCRIPTION
UTILITY DEDICATION GREY OAKS UNIT NINE
That certain real property designated C.U.E., U.E., D.E. and M.E., Tract A, Grey Oaks Unit
Nine, according to the Plat thereof, recorded in Plat Book 28, Pages 22 through 26, inclusive,
of the Public Records of Collier County, Florida.
FOR USE BY THE
CLERK OF COURT:
2323883 OR: 2423 PG: 1100
RECORDED in OFHCIAL RECORDS o~ COLLIER COUNTY,
05/26/98 at 08:36AM DWIGHT E. BROCK, CLERK
REC PEE
Retn:
ENGINEERING REVIEW SERVICES
SHIRLEY NIX
EXT 55~6
DOC-.70
15.00
.70
UTILITIES FACILITIES WARRANTY DEED
GREY OAKS UNIT NINE
THIS INDENTURE, made this ~. day of Dec ...... ,...~,, between TERRA VERDE
AT GREY OAKS. LTD, a FLorida Limited Partnership (hereinafter referred to as "Grantor"),
and the BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS
THE GOVERNING BODY OF COLLIER COUNTY AND AS EX-OFFICIO THE
GOVERNING BOARD OF THE COLLIER COUNTY WATER-SEWER DISTRICT, its
successors and assigns (hereinafter referred to as "Grantee").
WITNESSETH:
That said Grantor, for and in consideration of the sum of Ten Dollars and other
good and valuable consideration to said Grantor in hand paid by said Grantee, the r~eipt
whereof is hereby acknowledged, has granted, bargained and sold to the said Grantee, and
Grantee's heirs, successors and assigns forever, all sewer utility facilities lying within the
following described land, together with appurtenant easement rights for the operation, installation
and maintenance of said facilities, situate, lying and being in Collier County, Florida, to wit:
(See Exhibit "A" attached hereto
and incorporated by reference herein)
and said Grantor does hereby fully warrant the title to said utility facilities, and will defend the
same against the lawful claims of all persons whomsoever. For the purposes of this conveyance,
the utility facilities conveyed herein shall not be deemed to convey any of the lands described
in Exhibit "A". Grantor and Grantee are used for singular or plural, as context requires.
OR: 2423 PG: 1101
In Witness Whereof, Grantor has caused these presents to be executed the date and year first
above written.
Signed and delivered
in our presence:
_,itness
Print Name:
TERRA VERDE AT GREY OAKS LTD., a
Florida Limited Partnership, by its General Partner,
o o tion.
By: Nichol~/~h_~r~////////
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this (0+~ day of
.,3"-~wo.o.~-3 , 199~ by Nicholas Shepherd, President of Florida Bay, Inc., a Florida
corporationS, as General Partner of Terra Verde at Grey Oaks, Ltd., a Florida Limited Partnership, who
is personally known to me and who did take an oath.
y ~mmlSslon P3~~~ t~nu~ov^uvaeat I
JIEWEL. L $ H,ARR~$ I
cc$$'~e:ao i
This Instrument Prepared By:
Kathieen C. Passidomo, Esq.
Kelly, Price, Passidomo & Siket
2640 Golden Gate Parkway
Suite #315
Naples, Florida 34105
(941) 261-3453
2
*** OR: 2423 PG: 1102 ***
LEGAL DF_.SC IP ON
UTILITY DEDICATION GREY OAKS UNIT NINE
That certain real property designated C.U.E., U.E., D.E. and M.E., Tract A, Grey Oaks Unit
Nine, according to the Plat thereof, recorded in Plat Book 28, Pages 22 through 26, inclusive,
of the Public Records of Collier County, Florida.
OWNER'S AFFIDAVIT
GREY OAKS UNIT NINE
STATE OF FLORIDA
COUNTY OF COLLmR
'7~ 2~r~t,.~; · ~q~ 9
On this ~ day of D~, before me personally appeared the undersigned,
as President of Florida Bay, Inc., a Florida corporation, the General Panner of Terra Verde at
Grey Oaks, Ltd., a Florida Limited Partnership, owner of the following described property, to
me personally known (hereinafter "Affiant"), who, being duly sworn on their oath, did say that
all of the persons, firms, and corporations, including the general contractor and all
subcontractors, who have furnished services, labor or materials according to plans and
specifications, or extra items, used in the construction or repair of sewer utility facilities on the
real estate hereinafter described, have been paid in full and that such work has been fully
completed and accepted by the owner.
Affiant further says that no claims have been made to the Owner by, nor is any suit now
pending on behalf of, any contractor, subcontractor, laborer or materialman, and further that no
chattel mortgages or conditional bills of sale have been given or are now outstanding as to the
subject utility facilities placed upon or installed in the aforesaid premises.
Affiant further says that the utility facilities described herein are encumbered by the
following:· a Mortgage, Security Agreement and Assignment of Rents and Profits dated July 9,
1997 and recorded in O.R. Book 2331, Page 2835, of the Public Records of Collier County,
Florida, held by The Halstatt Partnership; a Mortgage dated July 9, 1997 and recorded in O.R.
Book 2331 Page 2850 of the Public Records of Collier County, Florida and an Assignment of
Lases, Rets and Profits dated July 9, 1997 and recorded in O.R. Book 2331 Page 2862, of the
Public Reords of Collier County, Florida, and a U.C.C. Financing Statement recorded in O.R.
Book 2331 Page 2865, of the Public Records of Collier County, Florida, all held by Barnett
Bank, N.A.
Affiant, as and on behalf of the owner of the subject utility facilities, does for valuable
consideration hereby agree and guarantee, to hold the Board of County Commissioners of Collier
County, Florida, as the governing body of Collier County and as Ex-Officio the Governing
Board of the Collier County Water-Sewer District harmless against any lien, claim or suit by
any general contractor, subcontractor, mechanic or materialman, and against chattel mortgages,
security interests or repair of the subject utility facilities. Affiant is used as singular or plural,
as the context requires.
The utility facilities referred to herein are located within the real property described in
the attached Exhibit "A".
In Witness Whereof, Affiant has caused these presents to be executed the date and year first
above written.
Signed and delivered
in our presence:
itness
Print Name:
TERRA VERDE AT GREY OAKS LTD., a
Florida Limited Partnership, by its General Partner,
Florida Bay Inc. ,~~,~',~ corpora~tion.
Nicholas ShelJlle~d, President
STATE OF F oR bPr
COUNTY OF
The foregoing instrument was ~_~ ...... ~ ..... ~,, before me this day of
~o~V~oo,r~ , 199°o, by Nicholas Shepherd, President of Florida Bay, Inc., a Florida
corporation, a~ General Partner of Terra Verde at Grey Oaks, Ltd., a Florida Limited Partnership, who
is personally known to me and who did take an oath.
M sion F. xPn'es.l~o;~._.~t.~ ,~w~.t ~ ~ !
CCSS'I ~o
TMs Instrument Prepared By:
Kathleen C. Passidomo, Esq.
Kelly, Price, Passidomo & Siket
2640 Golden Gate Parkway
Suite #315
Naples, Florida 34105
(941) 261-3453
2
LEGAL DF_,SCRIFFION
UTILITY DRDICATION GREY OAKS UNIT NINE
That certain real property designated C.U.E., U.E., D.E. and M.E., Tract A, Grey Oaks Unit
Nine, according to the Plat thereof, recorded in Plat Book 28, Pages 22 through 26, inclusive,
of the Public Records of Collier County, Florida.
ATrORNEY'S AFFIDAVIT
GREY OAKS UNIT NINE
STATE OF FLORIDA
COUNTY OF COLLIER
ON THIS ,~ day of December, 1997, before me personally appeared Kathleen C.
Passidomo, a licensed attorney authorized to practice in the State of Florida, to me personally
known, whose current business address and telephone number is 2640 Golden Gate Parkway,
Suite 315, Naples, Florida 34105, (941) 261-3453 (hereinafter "Affiant"), who, being duly
sworn on her oath, does say:
1. This Affidavit is given as an inducement to the Board of County Commissioners
of Collier County, Florida, as the governing body of Collier County and as Ex-Officio the
Governing Board of the Collier County Water-Sewer District to accept the dedication or
conveyance of sewer utility facilities located within or. upon the real property described in the
attached Exhibit "A", which is incorporated herein by reference, said land being located in
Collier County, Florida.
2. The Affiant has examined record title information to both the real and personal
property referenced in this affidavit, including but not limited to, information requested from
the Florida Secretary of State relative to any Uniform Commercial Code financing statements.
3. The record owner of the real and personal property described herein is Terra
Verde at Grey Oaks, Ltd., a Florida Limited Partnership (hereinafter "Owner"). The Owner
acquired record title to the subject real property by instrument recorded at Official Records Book
2331, at Page 2831, Public Records, Collier County, Florida (copy attached).
Afl'mt has examined partnership information obtained from the State of Florida. The
entity is current and active within said State. The entity is currentiy authorized to do business
in the State of Florida, and the exact names and titles of the persons authorized to execute the
instruments on behalf of the entity in conjunction with the conveyance of the subject real and
personal property are as described below:
Nicholas Shepherd, President of Florida Bay, Inc., a Florida
Corporation, the General Partner of Terra Verde at Grey Oaks, Ltd.
4. The subject real and personal property is encumbered by a Mortgage, Security
Agreement and Assignment of Rents and Profits dated July 9, 1997 and recorded in O.R. Book
2331, Page 2835, of the Public Records of Collier County, Florida, held by The Halstatt
Partnership (copy attached), a Mortgage dated July 9, 1997 and recorded in O.R. Book 2331
Page 2850 of the Public Records of Collier County, Florida and an Assignment of Lases, Rets
and Profits dated July 9, 1997 and recorded in O.R. GBook 2331 Page 2862, of the Public
Reords of Collier County, Florida, and a U.C.C. Financing Statement recorded in O.R. Book
2331 Page 2865, of the Public Records of Collier County, Florida, all held by Barnett Bank,
N.A. (copies attached).
5. Affront further states that the information contained in this Affidavit is tree,
correct and current as of the date this Affidavit is given.
SUBSCRIBED AND SWORN to before me thins ~2c.) day of December, 1997, by
Kathleen C. Passidomo, who is personally knownL/OR Produced Identification . Type
of Identification Produced
(affix notarial seal)
(Print Name)
My Commission Expires:
This Instrument Prepared By:
Kathleen C. Passidomo, Esq.
Kelly, Price, Passidomo & Siket
2640 Golden Gate Parkway
Suite//315
Naples, Florida 34105
(941) 261-3453
' ~'O~'~iCiAL NOTARY SEAL ~
I ~?.9-¥ POO/ JUDITH STEVENS
MY COMMI~ION EXPIRES
t~O~ ~ JULY 26,2000
...Rcform~\Utility~AltyAff
December 29, 1997 2:29pm 2
LEGAL DESCRIPTION
UTILITY DEDICATION GREY OAKS UNIT NINE
That certain real property designated C.U.E., U.E., D.E. and M.E., Tract A, Grey Oaks Unit
Nine, according to the Plat thereof, recorded in Plat Book 28, Pages 22 through 26, inclusive,
of the Public Records of Collier County, Florida.
220u,41 OR: 23'31 PG: 2831
R~¢ORDED in O[~I¢IAL U¢ORDS of ¢OLLI]R COUNTY,
~7/17/97 at 08:48AM DWIGHT ! BROCK, CLERK
CONS 3000000,00
RNC H~ 19,50
'INDEXING4,00
D0C-,?0 21000,00
Retn:
KELLY PRICE ET AL
2640 GOLDEN GATSiPK~Y ~315
NAPLES FL 34]05
Parcel ID Number:
Warranty Deed
This Indenture, Made this ~x.~ay of ~ , 1997, A.D., Betwee~
The Halstatt Partnership, a Florida General Partnership,
whose post office address is 2600 Golden Gate Parkway, Suite 200, Naples, Florida 34105,
herein called the grantor, to
TERRA VERDE AT GREY OAKS, Ltd., a Florida Limited Partnership
whose post office address is 3200 Bailey Lane, Suite 117,
herein called the grantee:
Naples, FL 34105
(The terms "grantor" and "grantee" include all the parties in each capacity tc this instrument
and their respective heirs, personal representatives, successors and assigns)
Witnesseth: That the grantor, for and in consideration of the sum of 10.00 and other valuable
considerations, receipt whereof is hereby acknowledged, hereby conveys to the grantee the following
described real property in Collier County, Florida:
All of Tract "A" of GREY OAKS UNIT NINE, according to the Plat thereOf as recorded in
Plat Book 28, Pages 22 through 26, inclusive, Public Records of Collier County, Flovida.
Subject to restrictions, reservations and easements of record, if any, and taxes subsequent
to 1996.
Subject to terms, covenants, conditions, easements, restrictions, reservatious and other provisions
according to that certain Declaration of Master Covenants, Conditions and Restrictions for Grey
Oaks recorded in Official Records Book 1697, Pages 1167, et. seq., as re-recorded in Official
Records Book 1740, Pages 1760, et seq., of the Public Records of Collier County, Florida, and all
amendments thereto.
And grantor hereby covenants with grantee is lawfully seized of said property in fee simple; that
grantor has good right and lawful authority to sell and convey said property; that grantor hereby fully
warrants the title to said property and will defend the same against the lawful claims of all persons
whomsoever and that said property is free of all enctunbrances not set forth herein.
OR: 2331 PG:
In Witness Whereof, grantor signed and sealed this deed on
Signed and delivered
in our presence:
Wi s ' ~
~l~rint~e: ~ '~
Witness -
D~NA R. SUTOR
Print Name:
NUMBER
THE HALSTATT PARTNERSHIP, a'Florida general
partnership BY: Lloyd G. Hendry, Harold S. Lynton,
and Juliet C. Sproul, as Trustees of the Edith Collier
Sproul Trust Agreement dated December 29, 1969,
and as confirmed by Agreement of Termination of
Trusteeship dated June 7, 1982, PARTNER
By: I~ OYI~ G. HENDRY, TrusA~
Witness (j
DORIS J. LEWIS
Name:
Witness
KlM D. DAVID,SON
Print Name:
Witness DORIS~J. LEWIS
t Name.._
Witn~IM D. DAVIDSON
Print Name:
HAROLD S. LYNTON, ,?/rustee'
STATE OF o ~"k ~_~,.~
COUNTY OF
The foregoing instrument was acknowle&ed befo .... ,~:~ ,'~'~. ,. c'-.. ' '
1997, ~, ...... ~ ~m~ ~ aay ol ~n '
December 29, 1969, and as confirmed by Agreement of Termination of Trusteeship dated June 7, 1982,
by LLOYD G. HENDRY, AS TRUSTEE, of the Edith Collier Sproul Trust t dated
Partner, on behalf of said Florida general partnerslfip, who is personally known to me and who did take
an oath.
~qotary Public0ENA R,, SUTOR
My Commission Expires: b' [ ~"q ?
CO~TY 0F Od ~{>'C~ :: . ..
The f°regoing imt~ent wm ac~owledged before me t~~da~ of ~~./ ,
1997, by ~ROLD S. L~TON, AS TRUSTEE, of the E~th Collier spro~ T~t ~d~r T~t Agreement
dated December 29, 1969, ~d
1982, Pa~ner, on beh~f of s~d ~o~ gener~ pa~ne~Np, who is ~rson~l~ ~o~ to .me
take ~ oath.
'"
My Co~ssion Expir=:~
STA~ OF ,.
co~ry o~ ....
.T~j~segoing ~t~ent w~ ac~owledged before me tN~
.......... , ut the mmtn uomer ~pro~ T~t ~deF Agreement dated
December 29, 1969, ~d ~ co~med by Agreement of Temination of T~te~hip dated June 7, 1982,
PaNner, on beh~f of s~d ~o~da gener~ pa~nersNp, who is ~rson~ly knoxm to me and who did take
an oath.
My Co~ssion Expir~:~
~ Wi~ ~er~f, gr~tor si~ed ~d s~ed tNs deed on , 1997.
Si~ed ~d de~vered
N o~ pr~nce:
T~ ~STATT PAR~RS~P, a Florida gener~
partnership BY: HAROLD S. LYNTON,
~T~~ 'G. SPRO~ ~d .~IET C.
SPRO~, ~ T~te~ for ~IET C. SPRO~ ~der
the Will of Barton Collier, Jr., dec~ed, ~d
co~med by ChiDe of T~te~ dated J~e 15, 1993
~d filed J~e 22, 1993, in Probate No. 76-33, of the
Probate Recor~ of CoIIier County,' Florida,
Witn~s
DORIS d. LEWIS ~ROLD s. E~TON, ~Y~tee
P~nt/N~e: ....
Witn~sKIM D. DAVIDSON
Print Name:
Witness
DORIS J. t_EWIS
Print ,Name:
; .... ,- , ,,' ~',. I '~ - ~-',,,-' [-T~
witness
KlM D. DAVIDSON
Print Name:
'I'~JRIND G. SPROUL/Trustee
Witness ~
DORIS J. LEWIS
Print Name:
Witness
KlM D. DAVIDSON
Print Name:
OR: 2331 2834
STATE OF i
COUNTY OF ~x_) [ ([ fr"'
Th~ foregoing instrument was acknowledged before me thi day of
1997, by HAROLD S. LYNTON, AS TRUSTEE, for Juliet C. Sproul under the Wiil of Bari'on Collier,
deceased, and as confirmed by Change of Trustees dated June 15, 1993, and filed June 22, I993, in Probate
No. 76-33, of the Probate Records of Collier County, Florida, PARTNER, on behalf of said Florida General
Partnership, who is
personally known to me and who did takd an oath. _ ~" r
, LYNNDST-'~J~ / - I //[/dlk.,~.._. L/; ( ~JLJ~/L,¢('
· COMMI~ION EXP AUG 27 1~'~ I y t. olllm/sslon Ex 1res _ ..
· ~ ....... ,,, ,,. ~. ,2';mi: P : '
COUNTY OF.. O ~ l' ((' e/'-'
The foregoing instrument was ae owledgea ?ro.r . me_tm ay 0f .. ,
1997, by KATHERINE G. SPROUL, AS TRUSTEE, tot amiet C. S~ro~l fin~ler the Will of Barton Collier,
Jr., deceased, and as confirmed by Change of Trustees dated June 15, 1993, ~d filed June 22, 1993, in
Probate No. 76-33, of the Probate Records of Collier County, Florida, PARTNER,': on behalf Of said Florida
General Partnership, who is personally known to me and who did take an oath. ~.
[ LYNN O S%'W /
[NOTtXRy PUltUOSTATIg OF 'FLORIDA~ ry P0b' . N ~3. ST/iRP
I' Co~x4tssto~ No. cca~m l iN YN , c
L~ COMMISSION ~xP. ^uc. zz, t.~sO t My Commission Expires: r, ~ ,/,~ ~
COUNTY OF //.ri t ([
_ The foregoing instrument was acknowled.ea ~.^~ ........ ~/~/;'-
1997, by JULIET C. SPROUL, AS TRUSTEE for JULIET C. SP - -'
Jr., deceased, der the Will of Bhrron Collier,
and as confirmed by Change of Trustees dated June 15, 1993, and filed June 22, 1993, in
Probate No. 76-33, of the Probate Records of Collier County, Florida, PARTNER, on behalf of said Florida
General Partnership,_who i.q nov~nnr~llv ltnt~x,.~ ,
' OMCCC ~Crr~drir~^l:-~ .'.,e ana wily did ta}ce an. oath,~ t
.......
TI-IlS INSTRUMENT PREPARED BY:
R. Scott Price, Esq.
Kelly, Price, Passidomo & Siket
2640 Golden Gate Parkway, Suite 315
Naples, Florida 34105
(941) 261-34S3
f:\dhme\hp.dee
Loan
~0670003480t-1
2206144 OR: 2331 PG: 2862
07/17/97 at 08:iSAM DWIGHT ~, BROCK, CHRI
HC FH 15,00
2~40 GOLHN G~T~ PK~Y ~31S
NAPLH FL 34105
ASSIGNMENT OF LEASES, RENTS AND PROFITS
'""D-lIS AGREEMENT, entered into this 9th day of July, 1997, by and between: TERRA VERDE
AT GREY OAKS, LTD., a Florida limited partnership, (hereinafter referred to as "Borrower"), and
BARNETT BANK, N.A., an Association organized under the laws of the United States, (hereinal"ter
referred to as "Lender"):
WITNESSETH..
WHEREAS, the Borrower is the Mortgagor it] that certain Mortgage dated as of even date
herewith (the "Mortgage"), granted to the Lender, securing a Revolving Promissory Note (the "Note")
itl the original principal sum of FOUR MILLION ONE HUNDRED FIFTY-FIVE THOUSAND AND
XX/100 DOLLARS ($4,155,000.00) and encumbering the following described property, situate, lying
and being in Collier County, Florida, being more particularly described as follows:
All of Tract "A" of
GREY OAKS UNIT NINE, according to tile Plat thereof ils recorded in
Plat Book 28, Pages 22 through26, inclusive, Public Records of Collier
County, Florida.
WHEREAS, as additional consideration and as a conditiort to making a first mortgage loan and
permitting the Borrower to enter into leases with tenants for the premises located upon the above
described property, which permission is required under the aforesaid Mortgage loan, Lender has required
the execution of this Assignment of Leases and Rentals of' the mortgaged premises by the Borrower.
NOW THEREFORE, as part of tile consideration for tile indebtedness evidenced by the No;c.
Borrower hereby absolutely and unconditionally assigns and transfers to Lender all the rents and revenues
of the Property, including those now due, past due, or to become due by virtue of ally lease or other
agreement for the occupancy or use of all or any part of the Property, regardless of to'wlmm the rents
and revenues of the Property are payable, together with all the profits derived fi'on] the operation of any
business or enterprise on the Property. Borrower hereby authorizes Lender or Lender's agents to collect
the aforesaid rents, revenues, and/or profits and hereby directs each tenant of the Property tO pay such
rents to Lender or Lender's agents; provided, however, tl'mt prior to written notice given by Lender to
Borrower of the breach by Borrower of any covenant or agreen]ent of Borrower in this Instrument,
Borrower shall collect and receive all rents, revenues and profits of the Property as trustee for tile benefit
of Lender and Borrower, to apply the rents and revenues so collected to the sums secured by the
Mortgage in the order provided therein with the balance, so long as no such breach has occurred, to the
account of Borrower, it being intended by Borrower and Lender that ti]is assignment of rents and profits
constitutes an absolute assignn]ent and not art assigrm]ent for additional security only. Upoi~ delivery ol'
written notice by Lender to Borrower of the breach by Borrower of any covenant or agreement itl this
Instrument, and without the necessity of Lender entering upon and taking and maintaining full control
of the Property ii] person, by agent or by a court appointed receiver, Lender shall immediately be entitled
to possession of all rents, revenues and profits of the Property as the same become due and payable,
including but not limited to rents then due and unpaid, and all such rents shall irnrnediately upon delivery
of such notice be held by Borrower as trustee for the benefit of Lender only; provided, howeveri that tile
written notice by Lender to Borrower of the breach by Borrower shall contain a statement that Lender
exercises its rights to sucll rents. Borrower agrees ti]at commencing upon delivery of such written notice
o[ Borrower's breach by Lender to Borrower, each tenant of the Property shall make such rems payable
to and pay such rents to Lender or Lender's agents on Lender's written clem]nd to each tenant therefor.
deli~,ered to each tenant personally, by mail or by delivering sucll demancl to each rental unit, without
any liability on tile part of said tenant to inquire further as to tile existence of a cleRlult by Borrower.
Borrower hereby covenants that Borrower ]las not executed any prior assigrmlent of said
rents and profits, that Borrower has not performed, and will not perform, any acts or has not executed',
and will not execute, any instrument which would prevent Lender from exercising its rights under this
paragraph, and that at the time of execution of this Instrument there has been ilo anticipation or
prepayment or' any of the rents of the Property for more than two months prior to the due dates'of such
rents. Borrower covenants that Borrower will ;lOt hereafter collect or accept payment of' any rents of thc
Ih'ol'~erty ,nc)re than two months prior to the due dates of such rents. Borrower t'urther covenants tim;
Borrower will execute and deliver to L,ender such further assigmnents o[ relltS anti revenues ol' thc
OR: 2331 PG: 2863
Property as Lender may from time to time request.
Upon Borrower's breach of any covenant or agreement of Borrower in the Mortgage or
in this Instrument, Lender may in person, by agent or by a court-appointed receiver, regardless o1: the
adequacy of Lender's security, enter upon and take and maintain full control of the Property in orde,' to
pert"onr~ all acts necessary and appropriate for the operation and maintenance thereof inciuding, but nc~t
limited,,l:o, the execution, cancellation or modification of leases, tile collection of all rents and revenues
of the Property, tile rnaking of repairs to tile Property and the execution or termination of' contracts
provicling for the management or ,'nair~tenance of the Pt'ope~'ty, all on such terms as are deemed best m
protect the security of this Instrument. In the event Lender elects to seek the appointment oF a receiver
tot' the Property upon Borrower's breach of any covenant or agreement of the Borrower in this
Instrument, Borrower hereby expressly consents to the appointment of such receiver. Lender or the
receiver shall be entitled to receive a.reasonable fee for so rnanagir~g tile Property.
All rents, revenues and profits collected subsequent to delivery of written notice by
Lender to Borrower of the breach by Borrower of any covenant or agreement of Borrower in tllis'
hlstrun'tent shall be applied first to the costs, if any, of taking control of and managing the Property and
collecting the rents and profits including, but not limited to, attorney's fees, the receiver's fees, premiums
on receiver's bonds, costs of repairs to the Property, premiums on insurance policies, taxes, assessments
and other charges on tile Property, and the costs of discharging'any obligation or liability of Borrower
as lessor or landlord of the Property arid then to tile sums secured by this hlstrurnent. Lender or thc
receiver shall have access to the books and records used in the operation and maintenance of the Property
and shall be liable to account only for those rents actually received. Lender sllall not be liable it)
Borrower, anyone claiming under or through Borrower or anyone having an interest in the Property by
reason of anything done or left undone by Lender under this paragraph.
If the rents and/or profits of the Property are not sufficient to meet tile' costs, if any, of
talcing control of and managing the Property and collecting the rents and profits any funds expended by
Lender for such purposes shall beconle indebtedness of Borrower to Lender secured by the'/Vlortg:Lge
pursuant to the provisions therein. Unless Lencler and Borrower agree in writing to other terms
payment, such amounts shall be payable upon notice fi'om Lender to Borrower requesting payment thereof
and shall bear interest fi'om the date of disbursement at the rate stated in the Note uf~less' payment
interest at such rate would be contrary to applicable law, in which event such amounts shall bear interest
at tile highest rate which may be collected fi'om Borrower under applicable law.
Any entering upon and taking and maintaining of control of the Property by Lender or
the receiver and any application of rents as provided herein shall not cure or waive any default l'~ereunder
or invalidate any other right or remedy of Lender under applicable law or provided herein, Tlais
assignment of rents of the Property shall terminate at such time as this Instrument ceases to secure
indebtedness held by Lender.
WITNESSES:
BORROWER:
TERRA VERDE AT GREY OAKS LTD.,,a Florida
z.-x .... limited partnersllip, by its general partner:
.(~~ ~O RI D A BAY, INC.', a F orida
orporation
P~nt. ~< ~~ff~~ BY: ' _
Nicholas She aerd, President
(CORPORATE SEAL)
Page 2 t~f'3
*** OR: 2331 PG: 2864
\X/ITN I~SS ES:
LENDER:
STATE OF FLORIDA
BARNETT BANK, N.A.
/
,.t. I',/,. ~'ii
Michael Rinaldi, yi e President
(CORPORATE SEAL)
COUNTY OF COLLIER
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and
County aforesaid to take acknowledgments, personally appeared NICHOLAS SHEPHERD, '(o/re of t//e
following should be checked; if none are checked, he is personally known to me) ~x- who is personally
Icnown to me, or has produced a valid Florida Driver License as identificatiork and who did take an
oath, and who is known to be the President of FLORIDA BAY, INC., a Florida corporation, the
corporation named as general partner of TERRA VERDE AT GREY OAKS, LTD., a Florida limited
partnership, the partnership named in the foregoing instrument and that he acknowledged executing the
same, in the presence of two subscribing wimesses, fi'eely and voluntarily under authority duly vested
in him by said corporation on behalf of said partnership and that the seal affixed thereto is the truc
corporate seal of said corporation.
1997.
WITNESS my hand and official seal in the State and County last aforesaid this 9th cia), of' July,
(SEAL)
STATE OF FLORIDA
COUNTY OF COLLIER
Printed Name Of Not,qrf "
My Commission Number is'
~2m_E~x p ires:
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and
County aforesaid to take acknowledgments, personally appeared MICHAEL RINALDI (one of the
following 3'hottld be checked,, if none are checked, he/she is personally known to me) X who is
personally known to hie, or has produced as identification,
and who did take an oath, and who is known to be a Vice President of BARNETT BANK, N.A., thc
corporation named in the foregoing instrument and that he/she acknowledged executing the same, in
presence of two subscribing witnesses, fl'eely and voluntarily uncler authority duly vested in him/her 13.5'
said COrl:)oration and that the seal affixed thereto is the true corporate seal of said corporation.
t997. WITNESS my hand and official seal in the State and County last aforesaid this 9th day of July,
EXPIRES: Ju.~ 18, 1998
This instrument prepared by:
JANE YEAGER CHEFFY,
Attorney at Law
2375 Tamiami Trail North, Suite 310
Naples, Florida 34103 Phone: (941) 263-1130Fax:
:,J <
Printed Name of Notary ' /
My Commission Number is:
My Commission gxpires:
(941) 263-3827 D:\wpdata\UORK\terra-b. ASG\J¥C\97.150
Page 3 oi'3
STATE OF FLORIDA'
~ ,UNIFORM .COMMERCIAL CODE -- FINANCING STATEMENT
FORM
UCC.1
REV.
1981
* -- THIS FINANCING STATEMENT ia t:x'e~emed to ,, fllln~ officer for fl!lng pumu~nt, to, the U~.?m Commercial Code: .....
OE~di'~R Ii.mt Nm'ne Fhll if a P'M~t) THt~ ~ACE FO~ U~. OF FIt.lNG OFFICER
NA,~E ~ VERDE AT GREY OAKS, LTD. a Fla
lA lfm~ted partnership
M^IU,G^OOa~SS C/O Hokanson Companies
107 N. Pennsylvania St., Suite 800
cr~ Indianapolis STATE IN 46204
MULTIPLE DEBTOR (IF ANY)
NAME
MAILING
C/TY STATE
MULTI~E ~BT~ ~F AN~
NAME
~ILI~ A~
STATE
SECU~EO P~
,*~E Barnett Bank, ~.A.
MAILING
796 FSfth Ave.
MULTI~E 8~U~D
NAME
MAILI~ A~RE~
CI~ STATE
~GNEE OF SECURED PA~ {IF AN~
NAME
MAILING ADORE~
CI~
STATE
'2206145 OR: 2331 PG: 2865
~CORDSD in~0fflClAL RgCORDS of COLLIER COUNTY, FL
RBC ~BB 10,50
Rein:
~P~S ~ 34105
AUCNT
VAUDATION INFORMATION
IUlK~TE
This FINANCING STATEMENT c~ra the following ty~ o~ ~tem~, of pro.fly (H1clu~ descmpti~ of reel pm~,e~fy on wtt~clt tocate~
SEE THE ATTACHED EXHIBIT A
5. Proc~e<:ls Of collateral ere co.red as pro~de,~ in Sections E7~.203 ·~1 6}'~.~0~. F.S. / 7. No. of a,~dltlo~4J $heltl pm~t~:
6. m,.~w.h: Clerk oI Court of Collier County ] ~
8. Ch~:k ~ All:doCumentary st~ t~ due arid ~ayable o~ to ~ du~ &~ ~ pursuant ID ~=1~o~ 201.2~ F,S.. h~ ~ I~l
[~ Florida Oocumenllry Stil~p T&x it not rm:luice~.
9.
13.
This Itate'r'4~l ~s filed wit~:X~l Ir.4 (t~tot'l $tgMtute to ~KI a ~ty int~&t
~llion Ch~g~ lO thil Irate.
~ whiCh (I pr~l Of the OHgiflll co{lltlrll de~ri~ I~ in which I
~ Il to wh<h Ihl filing h. I~.
[:~ iCQU~t~ after I Chiflp Of ~, I~fltity. Of C~O~ill Itructu~ Of t~
..,~..coo,,o & prepared by:
3aha Ye·gar Chaffy
2375 Tamiami Trail N., Suite 310
Naples, FL 34103
11.
uJ
·
·
12.
SiGNATURE(S} OF SECURED
PARTY(lES) OR ASSIGNEE
/-'/*"'f"' '~ /./. ~.~.;~,.-"7,'
/....
*** OR: 2331 PG: 2866 ***
EXHIBIT "A"
All fixtures, equipment, construction nlaterials, accounts, contract rigllts, general intangibles and all other personal
property (tangible mid intangible) of every nature now and llereafter owned by Debtor and located on, or in any way
relating or pertaining to, arising from or used or purchased for use itl connection with, wherever located, that
certain parcel or parcels of land located in Collier County, Florida more particularly described below
attached hereto and made a part hereof by reference owned by Debtor and all additions tllereto and all renewals,
replacenmnts and replenishments thereof; and including, without limitation, as a part of the realty, heating and air
conditioning units, equipment, machinery, ducts and conduits whether detachable or not, now or hereafter located
in and about the described premises, including all additions thereto and all proceeds thereof (of whatever fm-m or
nature), renewals, replacements and replenishments thereof:
Together with all and singular the tenements, hereditaments and appurtenances thereto belonging or ill anywise
thereunto appertaining, including the rents, issues and profits thereof, and also all the estate, right, title, interest
and all claim and demand whatsoever, as well in law as in equity, of Debtor in m~d to the same; including but not
limited to:
(a)
(b)
All rents, issues, profits, revenues, royalties, rights and benefits derived from the premises fi'om
time to tirne accruing, whether under leases or tenancies now existing or hereafter created,
reserving to Debtor, however, so long as Debtor is not in default hereunder, the right to receive
and retain the rents, issues and profits.
All causes of actions and judgments pursuant thereto relating to the property encumbered hereby,
all judgments, awards of damages and settlements hereafter made resulting from condemnation
proceedings or tile taking of the premises or any part thereof under the power of eminent domain,
or for any damage (whether caused by such taking or otherwise) to the premises or tile
improvements thereon or any part thereof, or to any rights appurtenant thereto, including any
award for change of grade of streets. Secured Party is hereby authorized, on behalf and in the
name of Debtor, to execute and deliver valid acquittance for, and to appeal from, any such
judgment or awards.
(c)
All policies of insurance, together with any proceeds therefrom, together with any abstracts of title
covering the land described in that certain mortgage from the Debtor as identified hereinabove,
in favor of the Secured Party, as identified hereinabove, encumbering the above described real
property.
(d)
(e)
(f)
(g)
All contract rights, causes of action, claims, demands, accounts receivable, all contracts to sell
any portion of the property secured hereby or by the mortgage, all deposits under such contracts,
all commitments to make mortgage loans on the property encumbered by the mortgage.
All licenses, easements, permits, development rights, plans and specifications, architectural
materials, bulkheads, fill, bridges located thereon, whether located on or used in connection with
the land described above.
All personal property, eq/]ipment, construction materials and fixtures now or hereafter located on
or used in connection with tile real property described 0n Exhibit "B" attached llereto.
All accounts receivable, notes receivable, general intangibles, inventory and cquipnlent of eve,'v
kind of Debtor. '
(h)
All money, certificates of deposit, bank accounts, money market certificates, and negotiable
instruments, of all or any of the Debtors which are now or hereafter in the possession of Secured
Party or its agents (including its legal counsel).
LEGAL DESCRIPTION: ALL OF TRACT "A" OF GREY OAKS UNIT
NINE, according to the Plat thereof as .recorded in Plat
Book 28, Pages 22 through 26, inclusive, Public Records
of Collier County, Florida..
Loan #06700034801-I
2206143 OR: 2331 PG: 2850
RECORDED tn OFFICIAL RECORDS of COLLIIR COUNTY, FL'
07/17/97 at 08:48A]( DWIGHT E. BROCK, CLERK
OBLD 4155000,00
OBLI 733165,00
REC FIE 55.50
D0C-.35 145{2.50
INT-,O02 1466,33
Retn:
KRLLY P~IC! 17 AL
2640 GOLDEN GATE PKWY ~315
IIIPLES. FL 31105
CONSTRUCTION MORTGAGE AND SECURITY AGREEMENT
THIS CONSTRUCTION MORTGAGE AND SECURITY AGREEMENT is made this
9th day of ..July, 1997, between the Mortgagor, TERRA VERDE AT GREY OAKS, LTD., a Floricl;~
limited partnership, (herein referred to as "Borrower"), whose address is: c/o Hokanson Conlpanies, 107
N. Pennsylvania St., Suite 800, Indianapolis, IN 46204, and the Mortgagee, BARNETT BANK, N.A..
organized and existing under the laws of the United States, whose address is: 796 Fifth Avenue South,
Naples, FL 34102, (herein "Lender").
WHEREAS, Borrower is indebted to Lender in the principal suni of FOUR MILLION
ONE HUNDRED FIFTY-FIVE THOUSAND AND XX/100 DOLLARS ($4,155,000.00) which
indebtedness is evidenced by Borrower's revolving promissory note of even date herewith (herein
"Note"), the terms, covenants and conditions of which note are by this reference incorporated herein as
fully as if' rewritten herein.
TO SECURE to Lender (a) tile repayment of tile indebtedness evidenced by the Nole,
with interest thereon, (b) the payment of all other sums, with interest thereon, advanced in accordance
herewith to protect the security of this instrument, (c) the payment of future advances pursuant to
paragraph 25 hereof and (d) the performance of the covenants of Borrower contained herein; Borrower
does hereby mortgage, grant and convey to Lender tile following described Property (herein the
"Property") located in the County of Collier, State of Florida:
All of Tract "A" of
GREY OAKS UNIT NINE, according to the Plat thereof as recorded in
Plat Book 28, Pages 22 through 26, inclusive, Public Records of Collier
County, Florida.
TOGETHER with all buildings, structures, and other improvements now or hereafter
erected on the Property, and all easements, rights, appurtenances, rents, royalties, mineral, oil and gas
rights and profits, water, water rights, and water stock, and all fixtures now or hereafter attached to the
Property, and including all rights of ingress and egress to and from adjoining Property (whether such
rights now exist or subsequently arise); together with all machinery, apparatus, equipment, fittings,
fixtures, whether actually or constructively attached to said Property, now or hereafter located in, under
or upon said Property; together with all paving for streets, roads, walkways or entranceways now or
hereafter owned by Borrower and which are now or hereafter located on the Property or any part or
parcel thereof; and together with Borr,ower's interest as Lessor in and to any and all leases of the
Property, or any part thereof, heretofor/: made and entered into, and in and to all leases hereafter nnaclt:
and entered into by Borrower during the life of this Mortgage and Security Agreement (hereinafter
"Mortgage") or any extension or renewal thereof, together with any and all guarantees thereof and
including all present and future security deposits and advance rentals, together with any and all awards
of payments, including interest thereon, and the right to receive the same, as a result of the exercise of
the right of enlinent domain or any other injury to, taking of or decreasing the value ct', the Property,
to the extent of all amounts which may be secured by this Mortgage at the date of tile receipt of any such
award of paynlent by Lender; all of which, including replacenlents and additions thereto, shall be deemed
to be and renlain a part of the Property covered by this Mortgage; and all of tile/bregoing, together with
said Property (or tile leasehold estate if this Mortgage is on a leasehold) are herein refen'~d to as tla~
"Property".
llorrower covenants that Borrower is lawfully seized of tile estate hereby conveyed ami
has tile right to mortgage, grant and convey the Property, that the Property is unencunlbered, except for
this mortgage to BARNETT BANK, N.A., and a Purchase Money Mortgage to The Halstatt Partnerslaip,
a Florida general partnership, which Purchase Money Mortgage is being expressly subordinated to the
[THIS MORTGAGE SECURES A REVOLVING LINE OF CREDIT AND INTANGIBLE TAXES DUE
ON EA CH A D VANCE WILL BE PAID TO THE FLORIDA DEPARTMENT OF REVENUE B Y Tltlf
AL ?'ERNA TE METttOD'[.
OR: 2331 PG: 2851
lien of this' Mortgage by Mortgage Subordination Agreement of even date herewith, a~td that Bon'ower
will warrant and defend generally the title to the Property against all claims and demands, subject to a,y
declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title/nsttra,ce
on Lender's interest in the Property.
BORROWER FURTHER COVENANTS AND AGREES WITH LENDER AS
FOLL, OWS'
1. PAYMENT. Borrower shall promptly pay when due the principal and interest
oil the indebtedness evidenced by the Note, prepayment and late clnarges as provided in the Note, and the
principal and interest on any future advances secured by this Mortgage.
,)
PAYMENT OTHER THAN PRINCIPAL AND INTEREST·
(a) Borrower shall pay, when due and payable, all taxes, assessments, general or
special and all the charges levied on, assessed, placed or made against the Property, this instrument, the
note or any interest of the Borrower in the Property or other obligations secured hereby; premiums on
policies of fire, flood (if necessary) and other hazard insurance coverage on tlne premises as required
herein; premiurns on all collaterally pledged life insurance, if this Mortgage and the Note are so insured;
ground rents or other leased rentals; and other sums related to tine Property of the indebtedness secured
lnereby, it' any, payable by Borrower. Borrower shall promptly deliver to Lender receipt showin~
payment in full of all of tine above items which.are not paid fl'om the escrow account it' any, hereafter
established. ' '
(b) Escrow Account. Upon notificatior~ from Lender of the occurence of a Default,
Borrower shall pay to Lender, together with and in addition to the payments of principal and interest
payable under the terms of the Note secured hereby, on the dates when any payment on either principal
or interest must be made by the terms of the Note, until said Note is fully paid or until notification from
Lender to the contrary, an amount reasonably sufficient (as estimated by Lender) to provide Lender with
funds to pay such taxes, assessments,' insurance premiums, rents and other charges next clue so that
Lender will have sufficient funds on hand to pay same thirty (30) days before the date on which they
beco~ne past due. In 11o event shall Lender be liable for any interest on any amount paid to it as herei~
rectuirecl, and the money so received may be held anti conamingled with its own funds, penctin~ paVlllellt
or application thereof as herein provided.
(c) Official Staternent; Receipt; Advances as Secured Indebtedness; Credits.
Borrower shall furnish to Lender, at least thirty (30) days before the date on which the same will become
subject to any interest, delinquency charge, penalty, fine or cost, an official statement of tine amount
said taxes, assessments, insurance premiums and rents next due, and shall, within fifteen (15) days
thereafter, furnish to Lender an official receipt showing payment of such clmrges, failing which Lender
rnay pay such clmrges fi'om tine arnour~t of tine then unused credit 'therefor, and at its option, illakc
advances tlnerefor itl excess of the tlnen anaount of tine credit for such clnarges. The excess amount
advanced slnall at the option of Lender be imrr~ediately due and payable to Lender and shall become part
of tine Secured Indebtedness and bear interest at tine maximum rate of interest permitted by law, from date
of aclvancement. Lender may apply credits (tine impounds requirecl under paragraph 2(b) above) held by
it for the above clnarges, or any part thereof, on account of any delinquent instalhnents of principal
interest or any other payments rnaturing or due under this instrument, arid fine amount of credit existing
at any time shall be reduced by the amount thereof paid or applied as herein provided. The alnlount of
tine existing credit hereunder at the time of any transfer to tine Property slnall, witlnout assignment thereol'.
inure to the benefit of the successor-owner of the Property and shall be applied under and subject to all
of the provisions hereof. Upon payment irt full of fine Secured Indebtedness, the amount of any unused
credit shall be paid over to the person entitled to receive it.
-~. INSURANCE.
fit) Types of Coverage; Loss Payee; Assignrnent; Application of Funds. Borrowe~'
shall I<¢ep the lh'operty insured tbr the benefit of Lender against loss or clamage by fire, lightning.
windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles and smoke
and such other hazards, including business interruptions, insurance covering loss of rents, revenues,
income, profits or proceeds from leases, franchises, concessions or licenses of or on any part of thc
Property, or as Lender may from time to time require, all in amounts approved by Lender not exceeding
one hundred percent (100%) of full insurable value; all insurance herein provided for shall be in form
Page 2 of 12
OR: 2331 PG: 2852
and with companies approved by Lender; and, regardless of the types or amounts of insurance reclui~'ed
:tnd approved by Lender, Borrower shall assign and deliver to Lender, as collateral ancl i"urtlner security
for the payment of tile Secured Indebtedness, all policies of insurance which insure against any loss
damage to the Property, with loss payable to Lender, without contribution by Lender, pursuant to New
York Standard or other mortgagee clause satisfactory to Lender. The delivery of the insurance policies
shall constitute an assignment, as further security, of' till unearned premiums existing Ii'tm] time to time
thereo?~, if Lender, by reason of such insurance, receives any money for loss or damage, such amount
may, ,5~ the option of Lender, be retained and applied by Lender toward payment of tine Secured
Indebtedness, or be paid over, wholly or in part, to Borrower for the repair or replacement of
Property or any part thereof, or for any other purpose or object satishctory to Lencler, but Lender slnall
not be obligated to see to the proper application of any amount paid over to Borrower.
(b) Public Liability Insurance. Tile Borrower shall at all times maintain public
liability insurance insuring against all claims for personal or bodily injury, death or Property damage
occurring upon, itl or about the Property in anlounts not less than FOUR MILLION ONE HUNDRED
FIFTY-FIVE TIqOUSAND AND XX/100 DOLLARS ($4,155,000.00) for injury or damage to any one
person and FOUR MILLION ONE H~UNDRED FIFTY-FIVE THOUSAND AND XX/100 DOLLARS
($4,155,000.00) for injury or damage from any one accident and FOUR MILLION ONE HUNDRED
FIFTY-FIVE THOUSAND AND XX/100 DOLLARS ($4,155,000.00) for Property damage. Such
insurance coverage shall be in form and with companies approved by the Lender.
(c) Flood Ir~surance. Insurance under tile Federal Flood Insurance program shall be
maintained att rill times within the minimurn requirements and amounts required under said program For
f'ederally financed or assisted loans under the Flood Disaster Protection Act of 1973, as amended, unless
specifically waived in writing by the Lender.
(d) Minimum Insurance Coverage. In the absence of written direction h'om Lender,
the insurance amount required herein shall not be less than such amount as may be required to prevent
Borrower from becoming co-insurer under the terms of any applicable policy, or the amount of the
Secured Indebtedness, whichever is greater.
(e) Renewal. Not less than ten (10) days prior to the expiration date of each policy
of insurartce required of Borrower pursuant to this paragraph, and of' each policy of illsurance Inelcl :t~s
additional collateral to secure the Secured Indebtedness, Borrower shall deliver to Lender a renewal policy
or pt)licies marked "premium paid" or accompanied by other evidence of payment satisfactory to Lender.
(1) Foreclosure; Successor In Interest. In the event ora foreclosure of this Mortgage,
tine purchaser of the Property shall succeed to all the rights of Borrower, including any right to unearnecl
premiums, in and to all policies of insurance assigned and delivered to Lender, with respect to ~lll
Property herein encumbered.
4. MAINTENANCE AND PRESERVATION. Borrower covenams that it will
permit, commit, or suffer no waste, impairment or deterioration of the Property or any part thereof, and
will keep the same and irnprovements thereon in good condition and repair. Borrower further covenants
that it will cause no demolition, renovation, or alteration of' the improvements to tile Property to take
place withe>ut the prior written approval and consent of tile Lender. Borrower shall have tile aff'irmativc
duty to keep any improvements to the Property in good repair, and Lender may make demand f'or
immediate repair of any improvements. Failure of tile Borrower to cornply witln tile demand for a period
of ten (10) days shall constitute a breach of this Mortgage.
5. TRANSFER AND ACCELERATION. This Mortgage is personal to the
Mortgagors. If all or any part of the Property or interest herein is sold, alienated, mortgaged,
encumbered or transferred by Borrower including by contract for deed without Lender's prior written
cor~sent, Lender inlay at Lender's option declare till the sums secured by this Mortgage to be imnneditnely
due and payable. The granting of Lender's consent to such transfer shall be conditioned upoln t3ol'rowet"s
grantee, transferee, mortgagee or other party to wlnom a conveyance is macle agreeing to any
modifications oFthis Mortgage or the Note secured thereby. It is specifically agreed the requirements
of this paragraph shall apply to the granting by the Borrower of a similar Mortgage or other elmumbrancc
having a priority of inferior dignity to this Mortgage.
6. INSPECTION. Lender and any persons authorized by Lender shall lnave the right
to enter and inspect the Property at all reasonable times and access thereto shall be permitted for that
Page 3 of 12
OR: 2331 PG: 2853
purpose.
7. PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the
covenants arid agreements contained in ti'tis Instrument, or if any action or proceeding is commenced
which affects the Property or title thereto or tile interest of Lender therein, including, but not limited
eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt
deced?j)t, then Lender at Lender's option rnay nlake sucll appearances, disburse such sums and take such
action as Lender deems necessary, in its sole discretion, to protect Lender's interest, including, but not
limited to (i) disbursement of attorney's fees, (ii) entry upon thc Property to rnal<e repairs, (iii)
procurement of' satlsf'~tetory Insurance as provtded in paragraph 3 hereof, and (iv) if this Instrument is on
a leasehold, exercise of any option to renew or extend the ground lease on behalf of Borrower and the
curing of any default of Borrower in the terms and conditions of the ground lease, and payment of ad
valorem taxes.
Any amounts reasonably disbursed by Lender pursuant to this paragraph together with
interest thereon, sllall becorne additional indebtedness of Borrower secured by this Instrufilentl Unless
Borrower and Lender agree to other terms of payn'~ent, such amounts shall be immediately due alld
payable and shall bear interest fl'orn tile date of disbursement at the highest rate which may be collected
from Borrower under applicable law. Borrower hereby covenants and agrees that Lender shall bc
subrogated to the lien of any mortgage or other lien discharged, in whole or in part, by the indebtedness
secured hereby. Nothing contained in this paragraph shall require Lender to incur any expense or take
any action hereunder.
8. .CONDEMNATION. Borrower sllall promptly notify Lender of any action
proceeding relating to any cortdemnation or other taking, whether direct or indirect, of the Property,
part thereof, and Borrower shall appear in and prosecute any such action or proceeding unless otherwise
directed by Lender in writing. Borrower authorizes Lender, at Lender's option, as attorney-in-fi~ct roi'
Borrower, to conqnlellce, appear ill and prosecute, in Lender's or Borrower's name. any action
proceeding relating to any condemrmtion or other tal<ing of tile Property, whether direct tn' indirect, Zlll,...I
to settle or compromise any clairn in connection with such condenlnation or otller iai<lng. The proceeds
of any award, payment or clairn for damages, direct or consequential, in connection with any
condemnation or other taking, whether direct or indirect, of the Property, or part thereof, or for
conveyances ill lieu of conderm'mtion, are hereby assigned to and shall be paid to Lender subject, if the
Instrument is on a leasehold, to the rights of lessor under the ground lease.
Borrower authorizes Lender to apply such awards, payments, proceeds or damages, after
the deduction of Lender's reasonable expenses incurred ill the collection of such amounts, at Lender's
option, t'o restoration or repair of the Property or to payment of the sums secured by this Instrument.
whether or not ther't due, in tile order of application set forth in paragraph 9 hereof, with the balance, ii'
any, to Borrower. Unless Borrower and Lender otllerwise agree in writing, any application of proceeds
to principal shall not extend or postpone the due date of tile monthly instalhnents referred herein
paragraphs 1 and 2 hereo0 or change the amount of such instalhnents. Borrower agrees to execute such
further evidence of assignment of any awards, proceeds, damages or claims arising in connection with
such condemnation or taking as Lender may require.
9. ..APPLICATION OF PAYMENTS. Unless applicable law provides otherwise.
all payments received by Lender from Borrower under the Note or this Instrument shall be applied by
Lender in the followir~g order of priority: (i) amounts payable to Lender by Borrower under paragraph
2 hereof; (ii) interest payable on the Note; (iii) principal of tile Note; (iv) interest payable on the advances
made pursuant to paragraph 7 hereof; (v) principal of advances made pursuant to paragraph 7 hereof; (vi)
interest payable on any Future Advance, provided that if more ti'mn one Future Advance is t)utstanding.
Lender may apply payments received among the amounts of interest payable on the Future Advances in
such order as Lender, ir! Lender's sole discretion, may determine; (vii) principal of any Future Advance,
provided that if more than one Future Advance is outstanding, Lender rnay apply payments received
among the principal balances of the Future Advances in such order as Lender, in Lender's sole discretion.
may determine; and (viii) any other sums secured by this Instrument in such order as Lender, at Lencler's
option, may detern'finei provided, however, that Lender may, at Lender's option, apply any sums payable
pursuant to paragraph 2 hereof prior to interest on and principal of the Note, but such application sh:dl
not otherwise affect the order of priority of application specified in this paragraph 9.
I0. BORROWER AND LIEN NOT RELEASED. From time to time, Lender may,
at Lender's c~pticm, without giving notice to or obtaining the consent of Borrower, Borrower's successors
Page 4 of 12
OR: 2331 PG: 2854
or assigns or of any junior lienholder or guarantors, without liability on Lender's part and
notwithstanding Borrower's breach of any covenant or agreement of Borrower in this Instrument, extend
the time for payment of said indebtedness or any part thereof, reduce the payments thereon, release
anyone liable on any of said indebtedness, accept renewal note or notes therefor, modify the terms and
time of payment of said indebtedness, release from tile lien of tllis Instrument any part of the Property,
take or release other or additional security, reconvey any part of tine Property, consent to any map or
of the,,Pmperty, consent to tile granting of any easement, join in any extension or sut'~orclination
agreelfi'&nt, at'~d agree in writing with Borrower to modify tile rate of interest or period of amortization
of the Note or change tllt amour~t of tlle monthly installments payable thereunder. Any actions takenby
bencler pursuant to the terms of tllis paragraph si'mil not affect tile obligation of" Borrower or Borrower's
successors or assigns to pay tile sunls secured by this Instrument and to observe the covenants
Bo,'rower contained herein, shall not affect the guaranty of arty person, corporation, partnership or other
entity for payment of the indebtedness secured llereby, and si'mil not affect tile lien or priority of lien
llereof on tile Property. Borrower si'mil pay Lender a reasonable service charge, together with such title
insurance premiums and attorney's fees as may be incurred at Lender's option, for any such action it'
taken at Borrower's request.
11. FORBEARANCE BY LENDER NOT A WAIVER. ArLv forbearance by Lender
in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a
waiver of or preclude tile exercise of any right or remedy. The acceptance by Lender of I>ayment of any
sum secured by this Instrument after the due date of such payment shall not be a waiver of Lender's right
to either require prompt payment when due of al4 otller sums so secured or to declare a default for failure
to nnake prompt payment. Tile procurement of insurance or the payment of taxes or other liens or
cllarges by Lender shall not be a waiver of Lender's right to accelerate the maturity of the indebtedness
secured by this Instrument, nor si'mil Lender's receipt of any awards, proceeds or damages under
paragraphs 3 and 8 hereof operate to cure or waive Borrower's default in payment of' sums secured by
this Instrument.
12. ESTOPPEL CERTIFICATE. Borrower shall within ten(10) business days of a
written request from Lender furnish Lender with a written statement, duly acknowledged, setting forlh
tile sums secured by this Instrument and any right of set-off, counterclaim or other defense which exists
agaillst such sulrlS and tile obligations of this hnstrtllllent.
13. .UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This Instrument
is intended to be a security agreement pursuant to the Uniform Commercial Code for any of the items
specified above as part of the Property which, under applicable law, may be subject to a security interest
pursuant to tile Uniform Commercial Code, and Borrower hereby grants Lender a security interest in said
itenns. Borrower agrees that Lender may file this Instrument, or a reproduction thereof, in tile real estate
records o1' otlner appropriate index, as a financing statement for any of tile items specified above as part
of" the Property. Any reproduction of this Instrument or of any other security agreement or financinu
statement shall tie sufficient as a firmncing statement, ltl addition, Borrower agrees to execute and deliver'
to Lender, upon Lender's request, any financing statements, as well ;ts extensions, renewals and
amenclme~lts thereof, and reproduction of this Instrument itl such form as Lencler nlay require to pe:'fec~
a security interest with respect to said items. Borrower si'mil pay all costs of filing such financing
statements and any extensions, renewals, amendments and releases .thereof, and shall pay all reasonable
costs and expenses of any record searches for financing statements Lender may reasonably require.
Without the prior written consent of Lender, Borrower shall not create or suffer to be created pursuant
to the Uniform Corrm'~ercial Code any other security interest in said items, including replacements and
additions tlnereto. Upon Borrower's breach of any covenants or agreement contained in this Instrument.
including the covenants to pay when due all sums secured by this Instrmr~ent. Lender shnlt have the
remedies of secured party under the Uniform Commercial Code and, at Lender's option, may also invoke
tile remedies provided in this Instrument as to such items. In exercising any of said remedies, Lender
may proceed against tile items of real Property and any items of person:ti Property and in any Ol'r, lcr
whatsoever, without in any way affecting fine availability of Lender's remedies under the Unifortll
Commercial Code or of the remedies provided in this Instrument.
14. .REMEDIES CUMULATIVE. Each remedy provided in ti'tis Instrument is distinct
and cumulative to all other rights or remedies under this Instrument or afforded by law or equity, and
may be exercised concurrently, independently, or successively, ill any order whatsoever.
15, .ACCELERATION IN CASE OF BORROWER'S INSOLVENCY. If Borrower
slnall voluntarily file a petition under tile I~ederal Bankruptcy Act, as such Act may fi'om time to time I've
Page 5 of 12
OR: 2331 PG: 2855
amended, or under ally similar or successor Federal statute relating to bankruptcy, insolvency.
arral-tgements or reorganizations, or under any state bankruptcy or insolvency act, or file an answer itl
an involuntary proceeding admitting insolvency or inability to pay debts, or it-' Borrower shall t'ail to
obtain a vacation or stay of involuntary proceedings brought for tile reorganization, dissolution
liquidation of Borrower, or if Borrower shall be adjudged a bankrupt, or if a trustee or receiver shall be
appointed for Borrower or Borrower's Property, or if tile Property shall become subject to tile jurisdiction
of a F,ederal bankruptcy court or sirnilar state court, or if Borrower shall make an assignment l"or the
benefi('bf Borrower's creditors, or if there is ail attachn-~ent, execution or other judicial seizure of any
portion o1' Borrower's assets and such seizure is not discharged within thirty (30) days, then Lender
tit L, ellcler's option, declare all of the sums secured by this instrument to be immediately clue and payatn'lc
without prior notice to Borrower, and Lender may invoke any remedies pemlitted by this Instrument
by applicable law. Any attorney's tees and other expenses incurred by Lender in connection with
Borrower's bankruptcy or any of the other aforesaid events shall be additional indebtedness of Borrower
secured by this Instrument.
16. .NOTICE. Except for any notice required under applicable law to be given
another mariner, (a) any notice to Borrower provided for itl this Instrument or ill the Note shall be given
by rna;ling such notice by certified mail addressed to Borrower at Borrower's address stated herein or
at such other address as Borrower may desigrmte by notice to Lender as provided herein, and (b) any
notice to Lender shall be given by certified mail, return receipt requested, to Lender's address stated
hurein or to such other address as Lender may designate by notice to Borrower as provicled herein. At~
notice provided fbr in this Instrument or in the Note shall be deemed to have been given to Borrower
Lender whell given in tile manner designated llerein.
17. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LiABiLiTY~
AGENTS; CAPTIONS. The covenants and agreements herein contained shall bind, and the rights
hereuncler shall inure to the successors and assigns of the Borrower and tile Lender, subject, however,
to the respective provisions of paragraph 5 hereof. All covenants and agreements of Borrower shall be
joint and several. In exercising any rights hereunder or taking any actions provided for herein, kenclcr
may act through its employees, agents or independent contractors as authorized by Lender. Tile captions
and headings of the paragraphs of this h]strunaent are for convenience only and are not to be used tc~
interpret or define the 'provisions hereof.
18. SEVERABILITY. If any provision of ti'tis Mortgage or ail), othe. r loan docutllel~t
or the application thereof shall, for any reason and to any extent, be invalid or unenforceable, neither the
remainder of tile Instrument in wi'rich such provision is contained, nor the application of tile provision
to other persons, entities or circumstances, nor any other instrurner~t referred to hereinabove shall be
affected thereby, but instead shall be enforced to the nlaximurn extent perrnitted by law.
19. LEGAL CONSTRUCTION OF DOCUMENT. This Mortgage and all related
loan documents, shall not be construed more strongly against any party regardless of who Was more
responsible tbr its preparation. This provision is a specifically negotiated tel're.
20. ATTORNEY'S FEES. Mortgagor agrees to pay all and singular tile costs.
charges ;.trld expenses, including reasonable attorney's tees, incurred by Mortgagee becaust: of ill;lure o1:
Mortgagor to perforn'~, comply with, and abide by each and every the stipulations, agreements, conditions
and covenants of said Prornissory Note and this Mortgage. As used itl this Mortgage alld rill loan
documents, attorney's fees shall include, but not be limitect to, fees incurred in all matters of collection
and enforcement, construction and interpretation, before, during and after trial, proceedings and appeals,
as well as appearances in and connected with bankruptcy proceedings, or creditors, or reorganization
proceedings.
21. .ASSIGNMENT OF RENTS AND PROFITS; APPOINTMENT O1.- RECEIVER:
LENDIER IN POSSESSION. As part of tlle consideration fbr the indebtedness evidenced by the
Borrower llereby absolutely and unconditionally assigns and transfers to Lender all tile rents and revenues
of tile Property, including those now due, past due, or to become due by virtue of :my lc:ase or
agreernent for the occupancy or use of all or any part of the Property, regarclless of wb~ru the rents
revenues of tile Property are payable, together with all the profits derived from the operation o~' any
business or enterprise on the Property. Borrower hereby authorizes Lender or Lender's agents to collect
the aforesaid rents, revermes, and/or profits and hereby directs each tenant of the Property to pay such
rents to Lender or Lender's agents; provided, however, that prior to written notice given by Lender
Borrower of the breach by Borrower of any covenant or agreement of Borrower in this Instrument,
Page 6 o1' 12
OR: 2331 PG: 2856
Borrower sh:tll collect and receive all rents, revenues and profits of tile Property as trustee for tile benefit
of Lender and Borrower, to apply tile rents and revenues so collected to tile sums securecl by this
Instrument ill tile order provided in paragraph 9 hereof with tile balance, sc) long its no such breach
occurred, to the account of Borrower, it being intended by Borrower and Lender that this assignment
rents and profits constitutes an absolute assignment and not all assignment for additional security only.
Upon delivery of written notice by Lender to Borrower of tile breacll by Borrower of any covenant
agreement ill this Instrument, and without tile necessity of Lender enterirtg upon and taking and
n'mmtamn-tg full control of the Property in person, by agent or by a court appointed receiver, Lender shall
immediately be entitled to possession of all rents, revenues and profits of the Property as tile
become due and payable, including but not limited to rents then due and unpaid, illld all such rents sh:~ll
immediately upon delivery of such notice be held by Borrower as trustee for the benefit of Lender
provided, however, that the written notice by Lender to Borrower of the breach by Borrower shall
n statement that Lender exercises its rights to such rents. Borrower agrees that commencing
delivery of such written notice of Borrower's breach by Lender to Borrower, each tenant of tile Property
shall make such rents payable to and pay such rents to Lender or Lender's agents on Lender's written
demand to each tenant therefor, delivered to each tenant persormlly, by mail or by delivering such
demand to each rental unit, without any liability on the part of said tenant to inquire further as to the
existence of a default by Borrower.
Borrower hereby covenants that Borrower has not executed any prior assignment of slticl
rents and profits, that Borrower has not performed, and will not perform, any acts or has not executed.
and will not execute, any inst,'urnent which would prevent Lender from exercising its rights under this
paz'agrapl'L and that at tile time of execution of tiffs Instrunlent there has been no anticipation or
prepayu)eztt of any of the rents of tile Property for more than two months prior to the due dates of such
rents. Borrower covenants that Borrower will not hereafter collect or accept payment of any rents of the
Property more than twelve months prior to the due dates of such rents. Borrower further covenants that
Borrower will execute and deliver to Lender such further assignments of rents and revenues of the
Property as Lender may from time to time request.
Upon Borrower's breach of any covenant or agreement of Borrower ill this Instrument,
Lender may in person, by agent or by a court-appointed receiver, enter upon and take and maintain full
control of the Property ill order to perform all acts necessary and appropriate for the operation alld
maintenance thereof including, but not limited to, the execution, cancellation or modification of leases,
the collectiun of all rents and revenues' of tile Property, tile making of repairs to the Property and tile
execution or terrain'ration of contracts providing for the lnanagement or maintenance of tile Property, all
on such terms its are deemed best to protect the security of this Instrument. In tile event Lender elects
to seek the appointment of a receiver for tile Property upon Borrower's breacll of any covenant or
agreement of tile Borrower in this Instrumertt, Borrower hereby expressly consents to tile appointment
of such receiver. Lender or the receiver shall be entitled to receive a reasonable fee for so mana~,ing the
Property. ~
All rents, revenues and profits collected subsequent to delivery of written notice by
Lender to Borrower of the breach by Borrower of ally covenant or agreement of Borrower in this
Instrument shall be applied first to the costs, if any, of taking control of and managing the Property and
collecting tl~e rents and profits including, but not limited to, attorney's tees, tile receiver's fees, premiums
on receiver's bonds, costs of repairs to tile Property, premiums on insurance policies, taxes, assessments
and other charges on tile Property, and tile costs of discharging any obligation or liability of Borrower
its lessor or landlord of tile Property and then to tile sums secured by this Instrument. Lender or the
receiver shall have access to the books and records used irt tile operation and mairttenance of tile Property
and shall be liable to account only for those rents actually received. Lender shall not be liable to
Borrower, anyone claiming under or through Borrower or anyone having an interest in the Property by
reason of anything done or left undone by Lender under this paragraph. '
If tile rents and/or profits of tile Property are not sufficient to meet tile costs, it' any, of
taking COlltrol of and managing tile Property and collecting tile rents and profits any funds expended by
Lender Ibr such purposes shall become indebtedness of Borrower to Lender secured by this Instrument
pursuant to paragraph 7 hereof. Unless Lender and Borrower agree in writing to other terms of payment,
such amounts shall be payable upon notice from Lender to Borrower requesting payment thereof alld shall
bear interest from tile date of disbursement at the rate stated ill tile Note unless payment of interest at
such rate would De contrary to applicable law, itl which event such amounts shall bear interest itt the
highest rate which may be collected fi'om Borrower under applicable law.
Page 7 o1' 12
OR: 2331 PG: 2857
Any entering upon and taking and maintaining of control of tile Property by Lencler or
the receiver and any application of rents as provided herein shall not cure or waive any default hereunder
or invalidate any other right or remedy of Lender under applicable law or provided herein. This
assigmt~cm of rents of tile Property shall terminate at such time as this Instrument ceases to sect.:rc
inctebtedness held by Lender.
.~ 22. ACCELERATION REMEDIES. Upon Borrower's breach of any covenant or
agreefi{}ent of Borrower in this h]strurnent, including, but not limited to, the covenants to pay when duc
any sums secured by tilts Instrument, Lender at Lender's option may declare alt of the sums secured by
this h'~strumont to b, h'm¥~dlat,ly due and payable without further demand and may foreclose this
Instrument by judicial proceeding and may invoke any other remedies perrnitted by applicable law or
provided herein. Lender shall be entitled to collect all costs and expenses incurred in pursuing such
remedies, including but not limited to, reasonable attorney's fees, costs of documentary evidence.
abstracts and title reports. Provided, however, that in the case of non-monetary defaults, tile Lender shall
give Borrower written notice and 30 days withir! which to cure said non-monetary defaults.
23. .RELEASE. Upon pay]lent of all sums secured by this Instrument, Lender shall
release this Instrument. Borrower si'mil pay Lender's reasonable costs incurred in 'eleasing this
lnstrun'~er~t. }
24. CONSTRUCTION LOAN. This is a construction loan mortgage, and a portion
of the proceeds of the loan secured hereby is loaned for the purpose of financing the construction of
improvements upor! a portion of the land herein described, and such loan proceeds will be d sbursed in
increments during tile course of such construction.
This mortgage is subject to the tm'nas, provisions and conditions of that certain
Construction Loan Agreement of even date herewith (The "Loan Agreement") between Borrower and
Lender, ]lad the Loan Agreement is by reference incorporated herein and made a part hereof. The Lo]il
Agreement is available fbr inspection by all parties in interest at tile office of Lender. It is understood
and agreed that a default of the Borrower under the terms of the Loan Agreement shall constitute a
default under the terms of this mortgage and itl such event the Lender may at its option accelerate the
payment of the debt hereby secured and exercise any other right or remedy for Borrower and/or
Borrower's default granted Lender herein or by law.
25. FUTURE ADVANCES. This Mortgage shall secure not only existing
indebtedness, but also such future advances, whether such advances are obligatory or to be iqlacle at the
option of Lender or otherwise, as are made within twenty (20) years from the date hereof, to the same
extent as il" such f~ture advances were made on the date of tile execution of this Mortgage, but such
secured inclebteclness shall not exceed at any time the maximum principal amcmnt of $8.00(),000.00, pltis
interest, and any clisbursements made for the payment of taxes, levies, or insurance oi] thc Mortgaged
Lender, or otherwise, may be made either prior to or after the due date of the Note or any other notes
secured by this Mortgage. This Mortgage is given for the specific purpose of securing any and all
indebtedness by the Borrower to Lender (but in no event shall the secured indebtedness exceed at may
time the maximum principal amount set forth in this paragraph) in whatever manner this indebtedness
may be evidenced or represented, until this Mortgage is satisfied of record. All covenants and
agreements contained in this Mortgage shall be applicable to all further advances made by Lender [o
Borrower under this future advance chtuse. Borrower shall immediately upon request of the Lender
execute gt~lcl deliver to the Lender a note evidencing each and every such f~ture advance and notices of
such advances in recordable form. All such notes shall be of equal dignity and a default in the paymem
of a/ay one note shall constitute a default in the payment of all other notes.
26. ENVIRONMENTAL LAWS; HAZARDOUS MATERIALS.
represents, warrarlts and covenants that:
L~ o1'i'(.) \¥c 1'
(a) Neither Borrower nor, to the best of Borrower's knowledge, any prior owner
the Property, nor, to the best of Borrower's knowledge, any tenant, subtenant, prior tenant, prior
subtenant or other person has used Hazardous Materials (defined below) on, fi'om or affecting tile
Property in any manner wi'rich violates federal, state or local laws, ordinances, rules, regulations or
policies governing tile use, storage, treatment, transportation, manufacture, refinement, ha]cilia,,.
production or disposal of Hazardous Materials;
Borrower has undertaken all appropriate inquiry into tile prex, ious ownership
Page 8 of 12
OR: 2331 PG: 2858
use of the Property consistent with good commercial or customary practice in an effort to minimize
liability under such laws, ordinances, rules, regulations or policies;
(c) To the best of Borrower's knowledge, the Property is free from contamination
by Hazardous Materials, and the Property and the activities conducted on the Property do not pose any
significant hazard to human health Or the environment or violate any such laws ordinances, rules.
regulai, ions or policies; and
(d) Borrower shall promptly notify tile Lender of any notice of a violation of any sucl~
laws, or0immces, rules, regulations or policies;
(e) Borrower shall keep the Property, or cause the Property to be kept, free of
Hazardous Materials;
(0 Without limitation to tile foregoing, Borrower shall neither cause nor permit:
(1) tile Property to be used to generate, manufacture, refine, transport, treat.
store, hanclle, clispose, transfer, produce or process Hazardous Materials, except in compliance with
applicable Federal, state and local laws or regulations, nor
(2) a release of Hazardous Materials onto the Property or any other property
as a result of any intentional or unintentional act or omission on the part of Borrower or any tenant or
subtenant.
(g) Borrower shall comply with, and ensure compliance by all tenants and subtenants
with, all applicable federal, state and local laws, ordinances, rules and regulations related to Hazardous
Materials, whenever and by whomever enacted or hi]de effective. Borrower shall obtain and comply
with, and ensure that all tenants and subtenants obtain and comply with, any and all approYals.
registrations or permits required under such laws, ordinances, rules and regulations.
(h) Borrower shall conduct and complete all investigations, studies, Salnpling a;~cl
testing, and all remedial, removal and other actions on, from or affecting the Property in accordance with
(a) all applicable federal, state and local laws, ordinances, rules, regulations and policies, and (b) the
orders and directives of all federal, state and local governmental authorities.
(i) Borrower shall defend, indemnify and hold harmless the Lender, and tile Lender's
employees, agents, officers, directors, shareholders, and affiliates, from and against any claims, demands.
penalties, fines, charges, interest, liabilities, settlements, damages (inclucting foreseeable zt~]tl
unfoz'eseeable consequential damages), costs or expenses of ally kind oz' nature, known or unl<nown.
contin~mu t)r otherwise including, without limitation, accountants' and attorneys' (including paralegztls'
and similar persons') fees at both the trial and appellate levels, consultant tees, investigation and
laboratory fees, court costs and litigation expenses, arising out of, or in any way related to:
(1) the presence, disposal, release or threatened release of any Hazardous
Materials which are oil, from or affecting the soil, water, vegetation, buildings, personal property,
persons, animals or otherwise;
(2) any personal injury, including wrongful death, or dam;~ge to properly,
real or personal, arising out of or related to such Hazardous Materials;
(3) ttlly lawsuit brought, threatened or settled or governmental order related
to such Hazardous Materials;
(4) any violation of laws, orders, regulations, requirements or demands
governmental authorities or of any policies or requirements of the Lender which are based upon or in any
way relate to such Hazardous Materials; and/or
(5) any past, present or future use, generation, handling, storage.
transportation, disposal or release of Hazardous Materials at or ill connection with tile Property, or any
decontamination, detoxification, closure, cleanup or other remedial measures required with respect to the
Property under any laws, ordinances, rules, regulations or policies governing l lazardous Materials.
Page 9 o1' 12
OR: 2331 PG: 2859
0) In the event that this Mortgage is foreclosed or Borrower tenders a deed in lieu
of fbreclosure, Borrower shall deliver the Property to the Lender fl'ce of any and all Hazardous Materials
so that the condition of the Property shall conform with all applicable federal, state and local laws,
ordinances, rules or regulations affecting the Property.
(k) The terrn "Hazardous Materials" includes, without limitation, any flammable
explQsives, radioactive materials, l]azardous materials, hazardous wastes, hazardous or toxic substances
or relY'ted materials defined in tile Comprehensive Enviromnental Response, Compensation, and Liability
Act c~t' 1980, as amended (42 U.S.C. Sec. 9601 et seq,), thc Hazardous Materials Transportation Acl.
i~s '4mended (49 U.$,C. Sec. 1801 et seq.), the Resource Conservation and Recovery Act of 1976, :ts
amended (42 U.S.C. Sec. 6901 et seq.), the regulations adopted and publications promulgated pursumlt
to the lbregoing and any other federal, state or local enviromnental law, ordinance, rule or regulation.
(1) All sums paid and costs incurred or advanced by the Lender with respect to this
Section shall bear interest, shall be paid and shall be secured in the manner provided by paragraph 7.
(m) The provisions of this paragraph shall be in addition to any and all other
obligations and liabilities Borrower may have to the Lender at common law or under any of tile Loan
Documents, and shall survive the termination of this Mortgage.
27. EVENTS OF DEFAULT. The occurrence of any of the following (tinle being
of the essence as to this Mortgage and all of its provisions) constitutes a "Default" by Borrower unclet'
this Mortgage ,'trial, at the option of the Lender, under the other loan doculnents:
(a) Scheduled Payment, Borrower's failure to make any payment required
by the Note when due, including any applicable grace period.
(b) Monetary Default, Borrower's failure to make any other payment
required by this Mortgage or the other loan documents wher~ due.
(c) Other. Borrower's failure to perform any other obligation imposed uptm
Borrower by this Mortgage or tl~'~ other loan documents within 30 days after the date when pertbrmai~c~:
is due. This provision shall not be construed to provide Borrower with any grace period in complying
with arLy obligations in]posed on Borrower by the terms of the loan documents.
(d) Representation. Any representation or warranty of Borrower contained
in this Mortgage or in any certificate delivered pursuant hereto, or in any other instrument or statemeat
furnished in connection herewith, proves to be incorrect or misleading in any material adverse respect
as of the tilne when the same shall have been made, including, without limitation, any and all financial
statmnents, operating statements, or schedules attached thereto, furnished by Borrower or any guarantor'
of the obligations to Lender or pursuant to any provision of this Mortgage.
(e) Bankruptcy. Borrower or any guarantor of tile obligations (i) files
voluntary petition in bankruptcy or a petition or answer seeking or acquiescing in any reorganization
for an arrallgement, cornpositJon, readjustment, liquidation, dissolution, or similar relief for itself
pursuant to tile United States Bankruptcy Code or any similar law or regulation, federal or state relating
to any relief for debtors, now or hereafter Jn effect; or (ii) makes all assigrnnent for the benefit of
creditors or admits in writing its inability to pay or fails to pay its debts as they become due' or (iii)
suspends payment of its obligations or takes any action in furtherance of tile foregoing; or (iv) consents
to or acquiesces in the appointment of a receiver, trustee, custodiall, conservator, liquidator or other
similar official of Borrower, or any guarantor, for all or any part of the Property or other assets of such
part),, or either; or (v) has filed against it an involuntary petition, arrangement, composition.
readjustment, liquidation, dissolution, 02' an answer proposing at] adjudication of it tls a bankrupt or
inso. lvent, or is subject to a reorganizatior! pursuant to tile United States Bankruptcy Code. an action
seeking to appoint a trustee, receiver, custodian, or conservator or liquidator, or any similar law, federal
or state, now ur hereafter in effect, and such action is approved by any court of competent jurisdiclion
and the order approving the same shall not be vacated 02' stayed within sixty (60) days fi'om entry; or (vi)
consents to tile filing of any such petition or answer, or shall fail to deny tile material allegations of' the
same itl a timely manner.
(f) Adverse Chan,Re in Circunlstances, In tile opinion of the Lender, any
material adverse change occurs with respect to tile financial condition of tile Borrower or the Guarantor
Page 10 of 12
OR: 2331 PG: 2860
of the Lo:u], or with respect to the value or condition of the real estate subject to the Mortgage, which
cllange would in the opinion of the Lender, increase the Lender's risk or impair the Borrower's ability
to repay the obligations hereul'<ler.
(g) Judgments. (1) A final judgrnent, other than a final judgment
connection with any condemnation, is entered against Borrower tllat ti) adversely affects the value, use
or ope!'ation of the Property, of (ii) adversely affects, or reasonably may adversely affect, the validity,
enfor6&~bility or priority of the lien or security interest created by this Mortgage or the other loan
documents, or both; or (2) execution or other final process issues thereon with respect to the Ih'opc,'ty;
and (3) Borrower does not discharge the sarne or provide for its discharge in accordance with its terms.
or procure a stay of execution thereon, in any event within tllirty (30) days frorn entry, or Borrower shall
not, withiu such period or such longer period during which execution on such judgment shall have
stayed, appeal therefrom or fi'om the order, decree or process upon or pursuant to which such judgmcm
shall hatve been entered, :tnd cause its execution to be stayed during such appeal, m' il' on appeal stlch
order, decree or process shall be affirmed and Borrower shall not discharge such ju¢lgn'~em or provide
for its discharge irt accordance with its terms within sixty (60) days after the entry of sucll order or decree
or affirmance, or if any stay of execution on appeal is released or otherwise discharged.
(1'0 Liens. Any fed'eral, state or local tax lien or any claim of lien for
or materials or any other lien or encumbrance of any nature whatsoever is recorded against Borrower
the Property and is not removed by payrnent or transferred to substitute security in the rnam'~er provided
by law, within twenty (20) days alter it is recor, ded in accordance with applicable law.
ti) Leases, Borrower's default in the performance or payment of Borrower's
obligations as lessor under any lease of till or any portion of the Property, whicll defauh could result, i~
Lender's judgment, in the termination of said lease.
(,j) Cross-Default, Other Notes or Mortgages. Borrower's default in the
performance or payment of Borrower's obligations under any other note, or under any other mortgage
encumbering all or any part of the Property, if the other mortgage is permitted by Lender. whether such
other note or mortgage is held by Lender or by any other pnrty. This provision applies to the Purchase
Money Mortgage being given by Borrower to The Halstatt Parmership, a Florida general partnership,
which is subordinate to the lien of tllis Mortgage.
(k) Borrower Default Under Loan Documents. Borrower's clefimlt not cu,'cd
within ally applicable grace period, in the payment or pertbrmance of ally of [)re'tower's obligations UllClcl'
any of the lc>an ctocuments, including this Mortgage.
(1) Transfer of Property or Ownership. Any sale, conveyance, transfer,
assignment or other disposition of all or any part of the Property.
(rn) ..False Statement. Any statement or representation of Borrower or
guarantor contained in the loan application or any financial statements or other materials furnishccl
Lender or any other lender prior or subsequent to the making of the loan secured hereby are discovered
to have been h~lse or incorrect or incomplete or misleading.
28. ABSTRACTS. Borrower shall upon request of the Lender deliver to the Lenclcr
or its designated agent the abstract or abstracts of title now owned or subsequently acquired by Borrower
covering the Property as further security for the Loan and the performance of Borrower's obligations to
the Lender, which nbstract(s) shall remain in tile possession of the Lender or its agent at all times until
all sums secured by this Mortgage are paid in full. In the event of a foreclosure of this Mortgage or
other transfer of title to the Property, all right, title and interest of Borrower in anti to such abstract(s)
of title si'mil pass to the foreclosure purchaser or otller transferee.
29. INDEMNITY. ln tlle event tlne Lender shall be named as a party to any lawsuit
brought itt any time against Borrower or with respect to, arising from or growing out of tile Property or
this Mortgage or the Loan, then regardless of the merits of such lawsuit Borrower shall, at the Lender's
option, defend the Lender, and Borrower shall indemnify and hold the Lender fully harmless from any
atnd all claims, demands, darnages, liabilities, judgments, losses, costs, expenses and attorneys' fees
arising from, growing out of or related to any such lawsuit or any appeal in connection with it.
30. SUBROGATION. The Lender is hereby subrogated (a) to the lien(s) of each iuld
Page Il of 12
*** OR: 2331 PG: 2861 ***
every mortgage, lien or other encumbrance on the Property which is fully or partially paid or satisfied
out of the proceeds of the Loan, and (b) to the rights of the owner(s) and holder(s) of any such mortgage.
lien or other encumbrance. The respective rights under and priorities of all such mortgages, liens or
other encumbrances shall be preserved and shall pass to and be held by the Lender as security for thc
LOml, to tile sanle extent as ii" they had been fully assigned by separate ip. strun'~er~t of assigrurmr~ts and
notwithstanding that the same may have been cancelled and satisfied of record.
IN WITNESS WHEREOF, the parties hereto have executed this Mortgage the day arKl
year first above written.
WITNESSES:
TERRA VERDE AT GREY OAKS, LTD., a Florida
limited pnrmersl'fip, by its general parmer:
FLORIDA BAY, INC., a Florida corporatio~.
its general partney//
Nicholas Shepherd, President
(CORPORATE SEAL)
STATE OF FLORIDA
COUNTY OF COLLIER
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in tile State and
County aforesaid to take acknowledgments, personally appeared NICHOLAS SHEPHERD, (one
following should be checked; if none are checked, he is personally known to me) k' who is personally
I<nown to me, or has produced a valid Florida driver license as identification, ~d who did take an
oath, and who is k~]own to be the President of FLORIDA BAY, INC., a Florida corporation, lhe
corporation named as tile general panther of TERRA VERDE AT GREY OAKS, a Florida limited
partnership, the partnership named in ihe foregoing instrument agd that he acknowledged executing the
same, in the presence of two subscribing wimesses, fl'eely and voluntarily under authority duly vested
in him by said corporation on behalf of said partnership and that tine seal affixed thereto is the true
corporate seal of said corporation.
1997. WITNESS my hand and official seal in tile State and County last aforesaid this 9th day of July.
(SEAL)
This instrument prepared by:
,JANE YEAGER CHEFFY,
Attorney at Law
2375 Tamiami Trail North, Suite 310
Naples, I':lorida 34103
Phone: (94 I) 263-1130
Fax: (941) 263-3827
NC RY (3
Printed Name of Notary
My Commission Number is:
My Commission Expires:
D:\wpdata\WORK\terra-b.mtg\jyc\
Page 12 of 12
Retn:
2~40 G~DI! GAT! ~T ~315
WAPLI$ FL 34105
2206142 OR:.2331-P : 2835
RffCORDBD in OffICIAL ]~lCORDI of COLLIIR COUITT, ?L
07/17/~7 at 08:48~ DEZGHT S. BROC[, CLSH
OBLD 1500000.00
OBLI Z~O0000,O0
'RIC lis ~.00
ZNT-.O02 3000.00
IB-ARFION COLLIER CO. I
MORTGAGE, SECURITY AGREEMENT~ AND
ASSIGNMENT OF RENTS AND PROFIT~
THIS MORTGAGE is made as of this ~ da
~ y of July, 1997, between the Mortgagor,
Terra Verde at Grey Oaks, Ltd., a Florida-Limited Partnership, whose address is
3200 Bailey Lane, Suite 117, Naples, Florida 34105 (herein "Mortgagor.,,), and the
Mortgagee, The Halstatt Partnership, a Florida general partnership, whose address is
2600 Golden Gate Parkway, #200 Naples Florida 34105 (collectively herein
"Mortgagee,,). ' ' ,
WHEREAS, Mortgagor is indebted to Mortgagee in the principal sum of One Million
Five Hundred Thousand and No/100 Dollars ($1,500,000.00) which indebtedness is evidenced
by Mortgagor's Promissory Note to Mortgagee dated of even date herewith (the "Note"),
and the terms of which Note are by this reference incorporated herein. A true copy of
the Note is attached hereto as Exhibit "A".
WHEREAS, to secure to Mortgagee (a) the repayment of the indebtedness evidenced
by the Note, with any interest thereon, and any renewals, extensions or modifications
to the Note, and the performance of the covenants and agreements of Mortgagor herein
contained, (b) the payment of all other sums, with interest thereon, advanced in
accordance herewith to protect the security of this Mortgage, (c) the payment and
performance of any and all other charges, liabilities, obligations and indebtedness of
Mortgagor to or for the benefit of Mortgagee, whenever arising, in connection with the
Note or otherwise, and any renewals, extensions or modifications thereto, and(d) the
performance of the covenants of Mortgagor containe~ herein (a through,d above are
sometimes hereinafter collectively referred to as the Secured Indebtedness,); Mortgagor
does hereby mortgage, grant and convey to Mortgagee the following described property
located in the County of Collier, State of Florida:
SEE EXHIBIT "B" ATTACHED HERETO & MADE A PART HEREOF.
TOGETHER with all buildings, structures, and other improvements now or hereafter
erected on the property, all materials .delivered to the property for. the use and
operation of said property or for use in any construction being conducted thereon and
owned by Mortgagor, and all easements, zonin varianc '
appurtenances, riparian rights, rights a ..... [ ..... es, .servitudes., privileges,
revenue, income, mineral o41 ~ ----~_J_~L ~=-~ces, rents, royaltie~ ro '
, ~ ~-~ ~u xz nuS an . , p fits,
stock, now or her ~ .... ~-~ .... ~ 9 P~9fits' water, water rights a d w
eaf~ ~=~u~n ~n an , n ater
~ y manner to the property, and including all rights
of ingress and egress to and from adjoining property (whether such rights now exist or
subsequently arise); together with all machinery, apparatus, equipment., inventory,
accounts receivable, proceeds due under any sales contracts or deposits or rights with
respect to sales contracts, utility hook-up rights, water and sewer extensions, interior
roadway, contract rights, all tangible and intangible personal property necessary for
or used in connection with the property or related to the property, all construction
related documents, Mortgagor,s rights in the name of the development (if any), fittings,
fixtures, whether actually or constructively attached to said property, now or hereafter
located in, under or upon said property; and al~ permits, licenses and approvals
necessary to operate the improvements; and Mortgagor s contract rights in all management
contracts for the improvements; and Mortgagor,s rights in the plans and sp~cifications
for the improvements; together with all paving for streets, roads, walkways or entrance
ways now or hereafter owned by Mortgagor and which are now or hereafter located on the
property or any part or parcel thereof; and together with Mortgagor,s interest as Lessor
in and to any and all leases of the property, or any part thereof, heretofore made and
entered into, and in and to all leases hereafter made and entered into by Mortgagor
during the life of this Mortgage or any extension or renewal thereof, together With any
and all guarantees thereof and including all present and future security deposits and
advance rentals reserving to Mortgagor equity of re '
with any and all awards of a e . ~. _ . dempt.ion, r~ghts therein; to ethe
p ym nts, lncludln~ interest thereon, and the ri~t t~
receive the same, as a result of the exercise of the right of eminent domai~ or any
other injury to, taking of or decreasing the value of, the property, to the extent of
all amounts which may be secured by this Mortgage at the date of the receipt Of'any such
award of payment by Mortgagee; all of which, including replacements and additions
thereto, shall be deemed to be and remain a part of the property covered by this
Mortgage; and all of the foregoing, together with said real property (or the leasehold
estate if this Mortgage is on a leasehold) are herein referred to as the "Property.,.
Mortgagor covenants that Mortgagor is lawfully seized of an indefeasible estate
in fee simple of the real property of the Property, has good and absolute title to all
personal property of the Property, and is otherwise lawfully seized of the estate hereby
conveyed and has the good right, full power and lawful authority to mortgage, grant and
· J FILE NUML~EIt
and will forever defend generally the title to the Property against all claims an~
demands, subject to any declarations, easements or restrictions listed in a schedule of
exceptions to coverage in any title insurance issued on Mortgagee's interest in the
Property. Mortgagor will make at Mortgagor,s expense and at no expense to Mortgagee any
other assurances to perfect the fee simple title in Mortgagor to the land, fixtures and
personal property mortgaged herein.
MORTGAGOR FURTHER COVENANTS AND AGREES WITH MORTGAGEE AS FOLLOWS:
1. PAYMENT. Mortgagor shall promptly pay when due the prinqipal and any
interest on the indebtedness evidenced by the Note, prepay~nent and late charges as
provide~,in the Note, and the principal and interest on any future advances, if any,
secured by this Mortgage.
2. ~AYMENT OTHER T~L%N PRINCIPAT,..
(a) Other Payments. Mortgagor shall pay, when due and payable, all taxes,
assessments,'"general or sPecial and all the charges levied on, assessed, placed or made
against the Property, this instrument, the Note or any interest of the Mortgagor in the
Property or other obligations secured hereby; premiums on policies of fire', flood (if
necessary) and other hazard insurance coverage on the Property as required herein;
premiums on all collaterally pledged life insurance, if this Mortgage and'the Note are
so insured; ground rents or other leased rentals; and all other sums or charges related
to the Property or the indebtedness secured hereby if any, payable'by Mortgagor.
Mortgagor shall promptly deliver to Mortgagee recei is showin . '
~f th~.above, items if the same are not otherwise ~a~ from ~ g payment in full of all
hereafter established with Mortgagee ~ une escrow account, if any,
(b) QFFICIAL STATEMENT~ RECEIPT; ADV~CES AS SECURED INDEBTEDNESS; CREDI£~.
Mortgagor shall furnish to Mortgagee, at least thirty (30) days before the date on whi6h
the same will become subject to any interest, delinquency charge, penalty,· fine or cost,
an official statement of the amount of said taxes, assessments, insurance premiums and
rents next due, and shall, within fifteen (15) days thereafter, furnish to. Mortgagee an
official receipt showin~ payment of such charges, failing which Mortgagee may pay such
charges from the amount of the then unused credit therefor, and at its option, make
advances therefor in excess of the then amount of the credit for such charges. The
excess amount advanced shall at the option of Mortgagee be immediately due and payable
to Mortgagee and shall become part of the Secured Indebtedness and bear interest at 18%
per annum from date of advancement.
3. INSLrR3%NCE.
(a) ~e~uired Insurance. Required'Mortgagor shall maintain such insurance for
flood, hazard and public liability as may be reasonably required by Mortgagee.
(b) ~IN~MUM INSUR~CE COVERAGE. In the absence of written direction from
Mortgagee, ~ne ~nsurance amount required herein shall not be less than such amount as
may be required to prevent Mortgagor from becoming co-insurer under the terms of any
applicable policy, or the amount of the Secured Indebtedness, whichever is greater.
(c) RENEWAL. Not less than thirty (30) days prior to the expiration d~te of each
policy of insurance required of Mortgagor pursuant to this paragraph, and of·each policy
of insurance held as additional collateral to secure the Secured Indebtedness', Mortgagor
shall deliver to Mortgagee a renewal policy or policies marked "premium paid" or
accompanied by other evidence of payment satisfactory to Mortgagee.
(d) FORECLOSURE; SUCCES$0R IN INTERE~?. In the event of a foreclosure of this
Mortgage, t~e purchaser of the Property sha~ succeed to all the rights of Mortgagor,
including any right to unearned premiums, in an to all policies of insurance assigned
and delivered to Mortgagee, with respect to all property herein encumbered.
4. ~MAINTENA/~CE D29I) PRESERVATION. Mortgagor covenants
commit, or suffer no waste, impairment or deterioration of the that it will permit,
thereof, and will keep the same and improvements thereon in good Property or any part
condition and repair.
Mortgagor shall have the affirmative duty to keep any improvements to the Property in
good repair, and Mortgagee may make demand for immediate repair of any improvements.
Failure of Mortgagor to comply with the demand for a period of thirty (30) days shall
constitute a breach of this Mortgage.
le__5~_ ~ .R~?~ER ~ ACCELERATION I; all or an
or~;;g~[, %~t~%%~lew)ri~cribed h~e~ is sold, mo~d~l~e~r?;r~y or. interest
.... ~en approval of Mort~a~ee ..... r ~rans~erred by
Dy t~lS Mortgage shall be immediately due ~?pa~ab~ Noze an~ all other sums secured
6. N~_~_~~. Mortgagee and any persons authorized by Mortgagee~shall have
the right to enter and inspect the Property at all reasonable times and access thereto
shall be permitted for that purpose.
7. P~ROTECTION OF MORTGAGEE,S SECURITY. If Mortgagor fails to perform the
covenants and agreements contained herein, or if any action or proceeding is'commenced
which affects the Property or title thereto or the interest of Mortgagee therein,
including, but not limited to, eminent domain, insolvency, code enforcement, or
-2-
OR: 2331,PG: 2837
[' 8ARRONCOLLIEI%CO.
/ FILENUI~OE~
arrangements or prOceedings involving a bankrupt or decedent, then Mortg~
Mortgagee's option may make such appearances, disburse such sums and take
as Mortgagee deems necessary, in its sole discretion, to protect Mortgagee~.s' interest,
including, but not limited to (±) disbursement of attorney's fees, (ii) e~try upon the
Property to make repairs, (iii) procurement of satisfactory insurance as. prbvided in
paragraph 3 hereof, and (iv) if this instrument is on a leasehold, exercise of any
option to renew or extend the ground lease on behalf of Mortgagor and the curing of any
default of Mortgagor in the terms and conditions of the ground lease, and payment of ad
valorem taxes. The Mortgagor shall give Mortgagee written notice of Mortgagor's intent
to take such action provided in this section and Mortgagor shall then have 30 days after
certified ~ail return receipt requested to Mortgagor to the address set fotEh herein or
such other,,address as Mortgagor designates in writing to cure the matter. This right
to cure shall not apply to any payments due Mortgagor but not paid as required herein.
Any amounts disbursed by Mortgagee ~ur~u&n~ ~o ~hi~ ~&~&~a~h ~ogether with
in~l~II~ ~he~lOn, Ih&ll ~e~omI &~itional indebtedness of Mortgagor secured hereby.
Unless Mortgagor and Mortgagee agree to other terms of payment, such amounts shall be
immediately due and payable and shall bear interest from the date of disbursement at
18% per annum. Mortgagor hereby covenants and agrees that Mortgagee shall be subrogated
to the lien of any mortgage or other lien discharged, in whole or in part, by the
indebtedness secured hereby. Nothing contained in this paragraph shall re,lire
Mortgagee to incur any expense or take any action hereunder.
8. ~3_~~. Mortgagor shall promptly notify Mortgagee of any action or
proceeding relating to any condemnation or other taking, whether direct or indirect, of
the Property, or part thereof, and Mortgagor shall appear in and prosecute any such
action or proceeding unless otherwise directed by Mortgagee in writing. Mortgagor
authorizes Mortgagee, at Mortgagee's option, as attorney-in-fact for Mortgagor, to
commence, appear in and prosecute, in Mortgagee's or Mortgagor's name, any action or
proceeding relating to any condemnation or other taking of the Property, whether direct
or indirect, and to settle or compromise any claim in connection with'such'condemnation
or other taking. The proceeds of any award, payment or claim for damages, direct or
consequential, in connection with any condemnation or other taking, whether direct or
indirect, of the Property, or part thereof/ or for conveyances in lieu of condemnation,
are hereby assigned to and shall be paid to Mortgagee subject, if this instrument is on
a leasehold, to the rights of any lessor under the ground lease.
Mortgagor authorizes Mortgagee to apply such awards, payments, proceeds or
damages, after the deduction of Mortgagee's expenses incurred in the collection of such
amounts, at Mortgagee's option, to restoration or repair of the Property or to payment
of the sums secured hereby, whether or not then due, in the order of application for
payments set forth in this Mortgage, with the balance, if any, to Mortgagor. Unless
Mortgagor and Mortgagee otherwise agree in writing, any application of proceeds to
principal shall not extend or postpone the due date of the monthly installments due
under the Note and other payments referred to herein (in paragraphs I and 2 hereof) or
change the amount of such installments. Mortgagor agrees to execute 'such further
evidence of assignment of any awards, proceeds, damages or claims arising in connection
with such condemnation or taking as Mortgagee may require.
9. APPLICATION OF PAYMENTS. Unless applicable law provides otherwise, all
payments rec~'ived by Mortgagee from Mortgagor under the Note or this instrument shall
be applied by Mortgagee in the following order of priority: (i) amounts payable to
Mortgagee by Mortgagor under paragraph I hereof; (ii) principal of the Note; (iii)
interest payable on advances made t? protect Mortgagee's security; (iv) principal of
advances made to protect Mortgagee s security; (v) interest payable on any Future
Advance, provided that if more than one Future Advance is outstandin .
apply payments received amon~ the am ,~. ~ ~ .............. g, Mortgagee may
~ o~..~o ~ ~=~=~ payao±e on t~e ~uture Advances in
such order as Mortgagee, in Mortgagee's sole discretion, may determine; (vi) principal
of any Future Advance, provided that if more than one Future Advance is outstanding,
Mortgagee may apply payments received among the principal balances of the Future
Advances in such order as Mortgagee, in Mortgagee's sole discretion, may determine; and
(vii) any other sums secured hereby in such order as Mortgagee, at Mortgagee"s option,
may determine; provided, however, that Mortgagee may, at Mortgagee,s option, apply any
sums payable pursuant to paragraph 2 hereof prior to interest on and principal of the
Note, but such application shall not otherwise affect the order of priority of
application specified in this paragraph.
10. MORTGAGOR AND LIEN NOT RELEASED. From time to time, Mortgagee may, at
Mortgagee's option, without giving notice ~o or obtaining the consent of Mortgagor,
Mortgagor,s successors or assigns or of any junior lienholder or guarantors of the Note,
without liability on Mortgagee's part and notwithstanding Mortgagor,m brea6h of any
covenant or agreement of Mortgagor herein, extend the time for payment of the
indebtedness secured hereby or any part thereof, reduce the payments thereo~, release
anyone liable on any of said indebtedness, accept renewal notice or notes therefor,
modify the terms and time of payment of said indebtedness, release from the lien of this
Mortgage any part of the Property, take or release other or additional security,
reconvey any part of the Property, consent to any map or plan of the Property, consent
to the granting of any easement, join in any extension or subordination agreement, and
agree in writing with Mortgagor to modify the rate of interest or period of amortization
of the Note or change the amount of the monthly installments payable thereunder. Any
actions taken by Mortgagee pursuant to the terms of this paragraph shall not affect the
obligation of Mortgagor or Mortgagor's successors or assigns to pay the sums secured
hereby and to observe the covenants of Mortgagor contained herein, shall not'af.~.ect the
-3-
OR: 2331 .PG: 2838
guaranty of any person, corporation, partnership or other entity for payraent 'oT the '
indebtedness secured hereby, and shall not affect the lien priority of this instrument
on the Property. Mortgagor shall pay Mortgagee a reasonable service .charge, together
with such title insurance premiums and attorney's fees as may be incurred at Mortgagee s
option, for any such action if taken at Mortgagor's request. If such an agreement
cannot be reached prior to maturity of the Note all amounts owed shall 'be paid upon
maturity.
11. EORBEAR3%NCE BY MORTGAGEE NOT A WAIVER. Any forbearance by Mortgagee in
exercising any right or remedy hereunder, or otherwise afforded by applicable law. shall
not be a waiver of or preclude Mortgagee from the exercise of any such right or ~emedy.
The acceRtance by Mortgagee of payment of any sum secured hereby after'the due date of
such payment shall not be a waiver of Mortgagee's right to either require prompt payment
when due of all other sums so secured or to declare a default for failure ~o make prompt
payment. The procuremen~ of inlur&nol or the payment of taxes or other liens or charges
by Mortgagee shall not be a waiver of Mortgagee,s right to accelerate ~he maturity of
the indebtedness secured hereby, nor shall Mortgagee's receipt of any awards, proceeds
or damages by insurance or condemnation operate to cure or waive Mortgagor's default in
payment of sums secured by this instrument.
12. MORTGAGOR STATUS. Mortgagor represents, warrants, covenants and agrees that
it is a limited partnership duly organized, validly existing and in good standing under
the laws of the State of Florida and has all requisite power and authority,, corporate
or otherwise, to conduct its business, to own its properties, and to execute and
deliver, and to perform all of its obligations under this Mortgage and the instrument
or note or notes secured hereby, and covenants to maintain such corporate or other
chartered status in good standing; the failure to maintain such corporate or other
chartered status in good standing shall constitute an event of default hereunder. The
execution, delivery and performance of this Mortgage, any instrument or note or notes
secured hereby, and any other documents being executed in connection herewith, have been
duly authorized by all necessary action (corporate or otherwise) and do not (i) require
any consent or approval of its stSckholders (if a corporation) or any other entity which
has not been obtained; (ii) violate any provisions of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award having applicability to the
Mortgagor or any other person executing and delivering such instrument, promissory.
note(s) or other documents; or (iii) result in a breach of, or constitute a default
under, any indenture or loan agreement, mortgage, or any other agreement, lease or
instrument to which Mortgagor or such other person is a party or by which it or its
properties may be bound or affected. This Mortgage, any other instrument, note or notes
or other obli~ations or indebtedness secured hereby, and any other documents being
executed in connection herewith shall constitute legal, valid and binding obligations
of the Mortgagor, or of any other person executing same, as the case may be',' enforceable
against it in accordance with their respective terms.
13. ~NSTITUTION OF OTHER PROCEEDINGS. If any proceedings should be instituted
against the Property, or any part thereof,- upon any Other lien or claim, whether
superior or junior to the lien of this Mortgage, Mortgagee may, at its option,
immediately upon institution of such suit or during the pendency thereof, declare this
Mortgage and the indebteclness secured hereby due and payable immediatelyan~ may, at its
option, proceed to foreclose this Mortgage. Provided however, Mortgagee'shall ~ive
Mortgagor written notice of such proceeding and Mortgagor shall have 30 days to cure in
the manner set forth and as limited by paragraph 7 herein especially as to non-payment.
Notice by certified mail return receipt requested to address set forth hereafter.
14. PRIORITY OF LIEN. Mortgagor will not permit any other liens (including but
not limited to mortgages, mechanics, liens, condominium or homeowners, association liens
for maintenance or special assessments, and s ecial as .
i~provements), to be filed a~ainst the n ..... ~_ __ sessment liens for municipal
whether paramount or subor '-~. ~ ~ . ~uy, apd if any such liens are filed~
any such liens, d1 ....... =his Mortgage, Morzgagor shall immediately discharg
15. COSTS OF OTHER PROCEEDINGS. If any action or proceeding shall be commenced
by any person other than Mortgagee (except an action to foreclose this Mortgage or to
collect the indebtedness secured hereby) to which action or proceeding Mortgagee is made
a party, or in which it shall become necessary to defend, or uphold, the lfen of this
Mortgage, all sums paid by Mortgagee for the expense of any litigation to'prosecute or
defend the rights and liens created by this Mortgage (including reasonable counsel fees)
shall be added to the principal balance secured hereby and shall bear interest at 18%
per annum, and any such sum, and the interest thereon, shall be a lien upon the
Property, and shall be deemed to be secured by this Mortgage. The sums paid by or
incurred by Mortgagee in accordance with the terms of this paragraph shall be paid by
Mortgagor to Mortgagee within thirty (30) days after demand, and the failure or omission
of Mortgagor to do so shall entitle Mortgagee to declare this Mortgaqe and the
indebtedness it secures to be in default.
16. N_O MARSHALING OF ASSETS. Neither Mortgagor, nor any third party who may
have or may hereafter acquire an interest in all or part of the Property, shall have the
right to require Mortgagee to marshall
pledgor's assets, nor shall they have th~ Mortgagor,s assets or any guarantor,s or
right to have any of the Property, or any
other property held as collateral for the indebtedness secured by this Mortgage, sold
or applied in any particular order to satisfy the indebtedness secured hereunder.
-4-
""- OR: 2331PG: 2839
17. PASSAGE OF LAWS. In the event of any passage after the date of th~s
Mortgage of any law of the United States, or of the State of Florida, or of any
municipality havin~ jur±sdi:tion with respect to the Property, deductin~ from the value
of real property, for the purposes of taxation, any lien thereon or chan~inU in any way
the laws for the taxation of mortgages or debts secured by mortgages for federal, state
or. local purposes, or the manner of the collection of any such taxes, and imposin~ a
tax, either directly or indirectly, on this Mortgage, the Note or on the related loan
documents, Mortgagee shall have the right to declare the entire unpaid principal
indebtedness secured hereby, and the interest thereon, due on a date to be specified by
not less than thirty (30) days written notice to be given to Mortgagor by'Mortgagee,
provided, however, that such election shall be ineffective if payment by Mortgagor of
the whole of such tax in addition to all other payments required hereunder is not
illegal ~nd if Mortgagor, prio~ to such specified date, pays such tax and agrees in
writin~ to pay any such tax when'thereafter levied or assessed against the Property, and
any such agreement shall constitute a modification of this Mortgage.
18. INTEREST CHARGED. It is the ~ntention of Mortgagor and Mortgagee that the
interest whi6h may be charged by Mortgagee, or paid to Mortgagee, or which Mortgagor may
be obligated to pay to Mortgagee on the Note or other obligations or indebtedness
secured by this Mortgage, shall never exceed the maximum rate of interest permitted to
be charged or paid under applicable law or any greater interest which may lawfully be
charged under any amendments to applicable law. All agreements between Mortgagor and
Mortgagee are expressly limited so that in no contingency or event whatsoever, whether
by reason of advancement of the monies evidence by the Note or any obligations or
indebtedness secured by this Mortgage, acceleration of maturity of the unpaid principal
balance thereof, or otherwise, shall the amount paid or agreed to be paid to Mortgagee
for the use, forbearance or detention of such monies, 'exceed the highest lawful rate
permissible under applicable law or any greater interest which may lawfully be char~ed
under any amendments to applicable law. If, under any circumstances whatsoever,
fulfillment of any provision hereof, or the Note or any other obligations or
indebtedness which this Mortgage secures, or any other agreement referred to herein, at
the time performance of such provisions recfuires payment or receipt of interest in
excess of the highest rate permissible under applicable law or any greater interest
which may lawfully be char~ed under any amendments to applicable law, then'much excess
interest
shall be applied in reduction of the unpaid principal balance., provided,
however, that such credit shall not cure a default of a failure to pay any ~nstallments
of principal or interest.
19. SUBROGATION Mortgagee is hereby subro~ated (a) to the liens(s) of each and
every mortgage, lien or other encumbrance (if any) on all or any part of the Property
which is fully or partially paid or satisfied out of the proceeds of the indebtedness
secured hereby, and (b) to the rights of the owner(s) and holder(s) .of any ~uch
mortgage, lien or other encumbrance. The respective rights under and priorities of all
such mortgages, liens or other encumbrances shall be preserved and shall pass to and be
held by Mortgagee as additional security for the indebtedness secured hereby, to the
same extent as if such rights and priorities had been duly assigned by separate
instrument of assignment and notwithstandin~ that the same may have been ca.ncelled and
satisfied of record.
b 20. .~UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. T . ':_ .
e a.~curl~y a~reament pursuant to ~e _ his instrument is ~ntended to
speclzled above as part of the Pro-er w~°r~_~ommerc~l .~oa% ~or any of the items
a security interest pursuant to the ~, ~ ......... ~p!lcaDle law, may be subject to
Uni ...... ~,,~,~==u~ai uoae, and Mortgagor hereby grants
Mortgagee a security interest in said items. Mortgagor agrees that Mortgagee may file
this instrument, or a reproduction thereof, in the real estate records or other
appropriate index, as a financing statement for any of the items specified above as part
of the Property. Any reproduction of this instrument or of any other security agreement
or financing statement shall be sufficient as a financing statement. In addition,
Mortgagor agrees to execute and deliver to Mortgagee, upon Mortgagee,s request, any
financing statements, as well as extensions, renewals and amendments thereof, and
reproduction of this instrument in such form as Mortgagee may require to perfect a
security interest with respect to said items. Mortgagor shall pay all costs of filing
such financing statements and any extensions, renewals, amendments and releases thereof,
and shall pay all reasonable costs and expenses of any record searches kor financing
statements Mortgagee may reasonably require. Without the prior written consent of
Mortgagee, Mortgagor shall not create or suffer to be created pursuant to the Uniform
Commercial Code any other security interest in said items, including replacements and
additions thereto. Upon Mortgagor,s breach of any covenant or agreement of Mortgagor
contained in this instrument, including the covenants to pay when due all sums secured
by this instrument, Mortgagee shall hav~ the remedies of a secured party under the
Uniform Commercial Code and, at Mortgagee's o tion. .
~ro~idgd in this instrument as to such items Pin e~-ma~ .also invoke the remedies
_~a~ee m~y proceed against the items of r~al-ro~jjj~?= r~±~,
p p rgy aha in any order whatsoever with ..... P P u~_an~ any items' of personal
~tgagee's remedies under the Uniform Coi%U~r~a~y av~c/.~n~ the.ava±~abi~±ty of
un~s instrument e or u~ une remedies provided in
21. REMEDIES CUMULATIVE. Each remedy provided in this instrument is distinct and
cumulative to all other rights or remedies under this instrument or afforded by law or
equity, and may be exercised concurrently, independently, or successively, in any order
whatsoever.
-5-
. OR: 2331 P 2840
^
22. ACCELERATION IN CASE OF INSOLVENCY. If Mortgagor shall voluntari~
petition under the Federal Bankruptcy Act, as such Act may from time to time be amended,
or under any similar or successor Federal statute relating to bankruptcy, insolvency,
arrangements or reorganizations, or under any state bankruptcy or insolvency act, or
file an answer in an involuntary proceeding admitting insolvency or inability to pay
debts, or if Mortgagor shall fail to obtain a vacation or stay of involuntary
proceedings brought for the reorganization, dissolution or liquidation of Mortgagor, or
if Mortgagor shall be adjudged a bankrupt, or if a trustee or receiver shall be
appointed for Mortgagor or Mort~agor's property, or if the Property shall become subject
to the jurisdiction of a Federal bankruptcy court or similar state court
Mortgagor shall make an assignment for the benefit of Mortgagor,s creditors, or ' or if
if there
is an attachment, execution or, other judicial seizure of any portion of Mortgauor,s
assets an~ such seizure is not discharged within thirty (30) days, then Mortgagee may,
at Mortg~ee's option, declare all of the sums secured hereby to be immedia=ely due and
payable without prior notice ~o Mor~a~or, &n~ Mo=~&~ee may invoke an remed
Mortgagee in connection with Mort~a~or's banu .... ~ .............. P s~s incurred by
= : ~upu~y ui any oz ~ne oz~er a£oresaid events
shall be additional indebtedness of Mortgagor secured by this instrument.
23. NOTICE. Except for any notice required under applicable law to be given in
another manner, (a) any notice to Mortgagor provided for herein or in the Note shall be
given by mailing such notice by certified mail return receipt requested addressed to
Mortgagor at Mortgagor's address stated herein or at such other address as Mortgagor may
designate by notice to Mortgagee as provided herein, and (b) any notice to,
shall be given by certified mail, return receipt requested, to Mortgagee Mortgagee
stated herein or to such other address as Mortgagee may designate by notice to s address
Mortgagor
as provided herein. Any notice provided for in this instrument or in the.Note shall be
deemed to have been given to Mortgagor or Mortgagee when ~iven in the manner designated
herein.
24. ~UCCESSORSANDASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; A~ENTS; CAPTION:;.
The covenants and agreements herein contained shall bind,
and the rights hereunder sha~l
inure to, the respective successors and assigns of this instrument; subject, however,
to the provisions of paragraph 5 (Transfer. and Acceleration) hereof. Ail covenants and
agreements of Mortgagor shall be joint and several. In exercising any rights hereunder
or taking any actions provided for herein, Mortgacee ma ac '.
agents or independent contractors as authorized ~- -~ ..... ~ ~_throuT~ ~ts employees,
- uy ,,u~ugagee. The captions and headings
of the paragraphs of this Mortgage are for convenience only and are not to be used to
interpret or define the provisions hereof.
25. SEUERABILITY. If any provision of this instrument or any other related loan
document or the application thereof shall, for any reason and to any extent, be invalid
or unenforceable, neither the remainder of the instrument in which such provision is
contained, nor the application of the provision to other persons, entities or
circumstances, nor any other instrument referred to hereinabove or related to the
indebtedness secured hereby shall be affected thereby, but instead shall be enforced to
the maximum extent permitted by law.
26. N~~j~. This instrument and all related loan documents, shall not be
construed more strongly against any party regardless of who was more responsible for its
preparation.
and ex2~s~AsT. T~nRN~Y'~ F~E~. Mortgagor agrees to pay all and sin ular '
P , ludln~ attorney s fees, incurred by Mortgage ~ costs, charges
~gbeca of ~he failure
of Mortgagor to perform, comply with, and abide by each and every one of the
stipulations, agreements, conditions and covenants of t~e Note and this Mortgage. AS
used herein and in all related loan documents, attorney s fees shall include, but not
be limited to, fees incurred in all matters of collection and enforcement, construction
and interpretation, before, during and after trial, proceedings and appeals, as well
as appearances in and connected with bankruptcy proceedings,
reorganization proceedings. , or creditors,
28. ASSIGNMENT OF RENTS AND PROFITS. APPOINTMENT OF RECEIVER. MORTGAGEE IN
POSSESSION. As part of the consideration for Mortgagee's extension of credit to
Mortgagor as evidenced by the Note, Mortgacor hereby absolutely and unconditionally
assigns and transfers to Mortgagee all the re~ts and revenues of the Property, including
those now due, past due, or to become due by virtue of any lease or other agreement for
the occupancy or use of all or any part of the Property, regardless of to whom the rents
and revenues of the Property are payable, together with all the profits derived from the
operation of any business or enterprise on the Prooert .
Mortgagee or Mortgagee,s agents to collect = . ~ M~rtga~or hereby authorizes
the aforesaid rents, revenues, and/or profits
and hereby directs each tenant of the Property to pay such rents to Mortgagee or
Mortgagee,s agents; ~, however, that prior to written notice ~iven by Mortgagee
to Mortgagor of the breach by Mortgagor of any covenant or agreement of Mortgagor in
this instrument, Mortgagor shall collect and receive all rents, revenues and profits of
the Property as trustee for the benefit of Mortgagee and Mortgagor,
and revenues so collected to the sums secured by this instrument in to apply the rents
the order provided
in paragraph 9 (Application of Payments) hereof with the balance, so long as no such
breach has occurred, to the account of Mortgagor, it being intended by Mortgagor and
Mortgagee that this assignment of rents and profits
and not an assignment for additional security only. constitutes an absolute assignment
Upon delivery of written notice by
Mortgagee to Mortgagor of the breach by Mortgagor of any covenant or agreement in this
instrument, and without the necessity of Mortgagee entering upon and takin~ and
-6-
OR: 2331 PG: 2841
maintaining full control oE the Property in person, by agent or by a court !ppointe~ - ' -
receiver, Mortgagee shall immediately be entitled to possession of all rents, revenues
and profits of the Property as the same become due and payable, including but not
limited to rents then due and unpaid, and all such rents shall immediately upon delivery
of such notice be held by Mortgagor as trustee for the benefit of Mortgagee only;
Drovided, however, that the written notice by Mortgagee to Mortgagor of the breach by
Mortgagor shall contain a statement that Mortgagee exercises its rights to such rents.
Mortgagor agrees that commencing upon delivery of such written notice, of Mortgagor's
breach by Mortgagee to Mortgagor, each tenant of the Property shall make such rents
payable to and pay such rents to Mortgagee or Mortgagee's agents on Mortgagee's written
demand to each tenant, delivered to each tenant personally, by mail or by delivering
such demand to each rental unit, without any liability on the part of said tenant: or
member ~ inquire further as to the existence of a default by Mortgagor:
Mortgagor hereby covenants that Mortgagor has not executed any prior assignment
of said rents and profits, that Mortgagor has not performed, and will not perform, any
acts or has not executed, and will not execute, any instrument which would prevent
Mortgagee from exercising its rights under this paragraph, and that at the time of
execution of this instrument there has been no anticipation or prepayment .of any of the
rents of the Property for more than two months prior to the due dates of such rents.
Mortgagor covenants that Mortgagor will not hereafter collect or accept payment of any
rents of the Property more than two months prior to the due dates of such rents.
Mortgagor further covenants that Mortgagor will execute and deliver to Mortgagee such
further assignments of rents and revenues of the Property as Mortgagee may from time to
time request.
Upon Mortgagor,s breach of an~ covenant or agreement of Mortgagor in this
instrument, Mortgagee may in person, by agent or by a court-appointed receiver,
regardless of the adequacy of Mortgagee's security, enter upon and take and maintain
full control of the Property in order to perform all acts necessary and appropriate for
the operation and maintenance thereof including, but not limited to, the execution,
cancellation or modification of leases, the collection of all rents and revenues of the
Property, the making of repairs to the Property and the execution or termination of
contracts providing for the management or maintenance of the Property, all on such terms
as are deemed best to protect the security of this instrument. In the event Mortgagee
elects to seek the appointment of a receiver for the Property upon Mortgagor's breach
of any covenant or agreement of the Mortgagor in this instrument, Mortgagor hereby
expressly consents to the appointment of such receiver. Mortgagee or the receiver shall
be entitled to receive a reasonable fee for so managing the Property.
All rents, revenues and profits collected subsequent to delivery of written notice
by Mortgagee to Mortgagor of the breach by Mortgagor of any covenant or agreement of
Mortgagor in this instrument shall be applied first to the costs, if any, of taking
control of and managing the Property and collecting the rents and profits including, but
not limited to, attorney's fees, the receiver's fees, premiums on receiver's bonds,
costs of repairs to the Property, premiums on insurance policies, taxes, assessments and
other charges on the Property, and the costs of discharging any obligation or liability
of Mortgagor as lessor or landlord of the Property and then to the sums secured by this
instrument. Mortgagee or the receiver shall have access to the books and records used
in the operation and maintenance of the Property and shall be liable to account only for
those rents actually received. Mortgagee shall not be liable to Mortgagor, anyone
claiming under or through Mortgagor or anyone having an interest in the Property by
reason of anything done or left undone by Mortgagee under this paragraph.
If the rents and/or profits of the Property are not sufficient to meet the costs,
if any, of taking control of and managing the Property and collecting the rents and
profits, any funds expended by Mortgagee for such purposes shall become indebtedness of
Mortgagor to Mortgagee secured by this instrument ursuant
of Mortgagee's Security) here~ ,,_~ ........ P _ to paragraph 7 (Protection
~ ~. v,~=~ ~orngagee and Mort~a or '
2th?r terms of payment, such amounts shall be ~avable u~on--~-~g~ee i~ writing to
~ ~ ~ ~ouzce ~rom Mortgagee to
~ortgagor requesting payment thereof and shall bear interest from. the. date of
disbursement at the rate stated in the Note unless pa ent of
would be contrary to anDlicable law ~ ....... }ym interest at such rate
, ~n wn~cn event SUCh amounts shall bear interest at
the highest rate which may be collected from Mortgagor under applicable ·law.
Any entering upon and taking and maintaining of control of the Propert} by
Mortgagee or the receiver and any application of rents as provided herein s'hall not cure
or waive any default hereunder or invalidate any other right or remedy of Mortgagee
under applicable law or provided herein. This assignment of rents of the Property shall
terminate at such time as this instrument ceases to secure indebtedness owed to
Mortgagee.
'29. ACCELERATION REMEDIES. !Upon Mortgagor's breach of any ~ovenant or agreement
of Mortgagor in this instrument, the Note, any loan agreement, commitment letter or any
other agreement between Mortgagor and Mortgagee related hereto, including, but not
limited to, the covenants to pay when due any sums secured hereby, Mortgagee may
immediately and without notice to Mortgagor, declare all of the sums secured by this
instrument to be immediately due and payable without further demand and may foreclose
this instrument by judicial proceeding and may invoke any other remedies permitted by
applicable law or provided herein. Mortgagee shall be entitled to collect all costs and
expenses incurred in pursuing such remedies, including, but not limited to, attorney,s
fees, costs of documentary evidence, abstracts and title reports. Mortgagee, at its
option, is authorized to foreclose this Mortgage, subject to the rights of any tenants
-7-
of the Property, and the failure to make any such tenants parties defendant t~--~~~
foreclosure proceedings and to foreclose their rights will not be, nor be asserted by
Mortgagor to be, a defense to any proceedings instituted by Mortgagee to collect the
sums secured hereby or to collect any deficiency remaining unpaid after the foreclosure
sale of the Property. Upon any such foreclosure sale, Mortgagee may. bid for and
purchase the Property and, upon compliance with the terms of sale and applicable law,
may hold, retain and possess and dispose of such Property in its own absolute right
without further accountability to Mortgagor.
Mortgagor agrees, to the full extent permitted by law, that in case of a default
on its part hereunder, neither the Mortgagor nor anyone claiming through or under it
shall o~,will set up, claim or seek to take advantage of any appraisement, valuation,
stay, extension or redemption laws now or hereafter enforced, in order to prevent or
hinder the enforcement or foreclosurs of ~hi~ Mortgage, oF thm absolute sale of the
Pr~er~ or ~hm £ina~ and &~o~u~m Du~in~ into possession thereof, immediately after
SUCh sale, of the Purchasers at the sale, 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 so do, the benefit of all such laws, and any and all rights to have the assets
comprising the Property marshalled upon any foreclosure of the lien hereof and agrees
that the Mortgage or any Court having Jurisdiction to foreclose the lien of the Mortgage
may sell the Property in part or as an entirety.
If 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 adversely 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 if no such proceeding had occurred or had been taken.
30. EVENTS OF DEFAULT. After the Mortgagee provides the Mortgagor with written
notice of event of default and 30 days thereafter to cure as provided, hereinbefore
except as to non-payment of interest and principal due under the terms of 'the Note, the
full amount of the principal, interest and other sums owed under the Note and any other
note or notes or other obligations or indebtedness secured by this Mortgage shall become
due at the option of Mortgagee, and Mortgagor shall be in breach of this Mortgage, in
the event that:
(a) Mortgagor fails to pay, as and when due and payable the Secured
Indebtedness; or ,
(b) Mortgagor fails to perform or observe any of the covenants, agreements
or conditions on the part of the Mortgagor in this Mortgage, any agreement related to
this Mortgage or the Note, or in any other instrument securin~ all or any part of the
Secured Indebtedness; or
(c) Mortgagor sells, encumbers, conveys or otherwise transfers any
interest in the Property or any portion thereof, whether or not such interest is subject
or subordinate to the interest of Mortgagee, without prior written consent of the
Mortgagee; or
(d) Mortgagor or any guarantor of the Secured Indebtedness or any portion
thereof (all of such parties being hereinafter referred to as "Obligors,,) makes any
assignment for the benefit of cre~itors, or should a receiver, liquidator or trustee of
any of the Obligors or of any of the property of any of the Obligors be appointed, or
should any petition for the bankruptcy, reorganization or arrangement of any of the
Obligors, pursuant to the Federal Bankruptcy Act or any similar statute, be filed by any
of the Obligors, or should any such proceeding be filed against any of the Obligors ~nd
remain undismissed for a period of thirty (30) days, or should any of the Obligor~ in
any proceeding admit its insolvency or inability to pay its debts as they fall due or
should any of the Obligors be liquidated or dissolved or its articles of incorporation
expire or be revoked; or
(e) Mortgagor fails to comply with any or all federal, state and local
laws or regulations relating to the Property; or
(f) Any representation, warranty, or covenant made by Mortgagor or any
other person or entity in any other instrument or document executed in connection with
this Mortgage, the Note or in any agreement made or delivered pursuant' to, or in
connection with, any such documents proves to have been incorrect; or
(g) Mortgagor permits the us'e, generation, treatment, storage, release or
disposition of any ~azardous Substance on the Property; or
(h) Mortgagor permits, allows or accepts to be created or exist any
mortgage, lien, security interest, attachment or other encumbrance or charge on the
Property or any part thereof or interest therein (except those shown on. the mortgagee
title insurance policy to Mortgagee and approved by Mortgagee) . Mortgagor further
aurees to ~ive Mortgagee immediate written notice of the imposition of any lien or
charge referred to herein and to take any action necessary to secure the prompt
discharue or release of the same.
-8-
31. AFTER ACOUIRRD PRQPERTY. The lien of this Mortgage will automatically
attach, without further ~t, to all a~ter acquired real or personal property located in
or on, appurtenant to or attached to, or used or intended to be used in connection with
or with the operation of, the Property or any part thereof.
32. CHANGES. Neither this Mortgage nor any term hereof may be Changed, waived,
discharged o~ terminated orally, or by any action or inaction, but only by an instrument
in writing signed by the party against which enforcement of the change, waive, discharge
or termination is sought. Any agreement hereafter made by Mortgagor and Mortgagee
relating to this Mortgage shall be superior to the rights of the holder of any
intervening lien or encumbrance.
3~ REPRODUCTIONSn This Mortgage. and all documents which have 'been or may be
hereinafter furnished by Mortgagor to Mortgagee that are related to the 'indebtedness
secured hereby may be reproduced by Mortgagee by any photographic, photostatic,
microfilm, xmro~ra~hi~, ~r similar process, and any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business).
34. ~0VERNIN~ LAW~ Mortgagor and Mortgagee intend that the validity and
construction of the obligations secured by this Mortgage and the enforcement of this
Mortgage shall be governed by the laws of the State of Florida.
35. RELEASE. Upon payment of all sums secured hereby, Mortgagee shall release
this instrument. Mortgagor shall pay the cost of recording the release.
36. WAIVER OF JURY TRIa~.. MORT~A~0R AND MORTGAGEE HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF A/FY LITIGATION (INCLUDIN~ BUT NOT LIMITED TO ANY CLAIMS, CROSS-CLAIMS, OR
THIRD PARTY CLAIMS) ARISIN~ OUT OF, UNDER, OR IN CONNECTION WITH THIS MORTGAGE, OR THE
TRANSACTIONS CONTEMPLATED HEREIN. MORTgAgOR HEREBY CERTIFIES THAT NO REPRESENTATIVE OR
AGENT OF THE MORTgAgEE NOR THE MORTGA~EE'S COUNSEL HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE MORTgAgEE WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO
ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
IN WITNESS W~EREOF, the parties hereto have executed this Mortgage the day and
year first above written.
WITNESSES: .MORTGAGOR:
TERRA VERDE AT GREY OAKS, Ltd., a
Florida Limited Partnership
By: Florida Ba~y~--.~,-it,s sole
corporate ~artner '
(COrporate Seal)
-9-
" OR: 2331 PG: 2844
STATE OF FLORIDA FI ~IOER '
COITNTY OF COLLIER ~
I HEREBY CERTIFY that on this day, before me, an officer duly authori d in the
Stat~; an~ County aforesaid/~o ta.ke/acknowledgments, personally appeared . ~A
~-~ , as ~-f~ ~'~/~ ~9~- of FLORIDA BAY, INC. , as s~ie corporat~
Genera{ Parkner of TERP~A VERDE AT GREY OAKs, LTD., a Florida Limited Partnership, to me
personally known or who oresente~ his driver's licensn, as identificat, ion, and who
executed the foregoin~ instrument and acknowledged that he executed the same for the
purposes therein expressed.
W ~' here ~c
~ ITNESS my hand and official seal in t
~ day of _ ,~.[_y ounty last aforesaid this
, 19%'7.
NOT~RY PLr~LI C ~
(Print Name: )
My Commission Expires:
This instrument prepared by:
R. Scott Price, Esq.
KELLY, PRICE, PASSIDOMO & SIKET
2640 Golden Gate Pkwy, Suite 315
Naples, Florida 34105
941/261-3453
-10-
$1,500,000.00
Exhibit "A"
PROMISSORY NOTE
2331 PG: 845
::~/;-
July,~, 1997
FOR VALUE RECEIVED, the under~{gned. TERRA VERDE'AT GREY OAKS, LTD.,
a Florida Limited Parmership, by FLORIDA BAY, INC., its sole General Partner,
(the "Maker"), promises to pay without setoff, deduction or counterclaim of any kind or nature
to THE HALSTATT PARTNERSHIP, a Florida General Partnership (who, together with any
and all subsequent holders of this Note, is hereinafter referred to as the "Payee"), or order, the
principal sum of ONE MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS
($1,500,000.00), together with interest thereon at the rate of the prime rate of Barnett Bank of
Florida, N.A., as announced from time to time as its prime rate. The interest'rate may change
as the prime rate changes. Both principal and interest are to be paid in lawful money of the
United States of America at 2600 Golden Gate Parkway, Suite 200, Naples, Florida 34105, or
at such other place as Payee may designate in writing, said principal and interest to be payable
on the dates and in the amounts as follows: '
The entire principal balance plus accrued interest shall be due and payable upon the
earlier of September 15, 1998 or when Maker has obtained twenty (20) third party non-
cancelable contracts for residential units within Maker's project located within Unit 9,
Grey Oaks, according to the plat thereof recorded in Plat Book ~, pp '~.~ through
~D, inclusive, Public Records of Collier' County, Florida. If Maker has not obtained
the twenty (20) contracts and Maker determines that a redesign of Maker's residential
product is required and notifies Payee in writing before June 1, 1998 of its intent to
redesign such product, then the maturity date of this note shall be March 15, 1999.
Interest on this Note shall be calculated on the basis of a 360-day year and paid for on
the basis of the actual number of days elapsed. This Note and all sums due hereunder shall bear
interest from the date when due, whether by lapse of time or on acceleration, at the Default Rate
(as hereinafter def'med) until paid. The "Default Rate" shall be a rate of interest per annum
equal to the lesser of the highest legal rate of interest permitted by applicable law or eighteen
(18%) percent per annum. The Default Rate also shall be the rate of interest used to compute
post-judgment interest.
This Note is secured by a mortgage (the "Mortgage") of even date herewith made by
Maker, as mortgagor, to Payee, as mortgagee, on property more particularly described therein,
situate in the County of Collier, State of Florida (the "Property").
Anything in this Note or in the Mortgage or in any other agreements or arrangements
with Maker in connection with the loan evidenced by this Note (the "Loan") to the contrary
notwithstanding, in no event shall the amount of interest due under this Note or the Mortgage
(together with all amounts reserved, charged, or taken by Payee as compensation for fees,
services or expenses incidental to the making, negotiation or collection of the Loan which are
deemed to be interest under applicable law), exceed the lesser of the highest legal rate of interest
permitted by applicable law or eighteen (18%) percent per annum on the unpaid principal
balance of this Note from time to time, and any sum collected in excess of said interest rate shall
OR: 2331 PG: 2846
BARRON COLLIE~ CO.
FILE
be applied to reduce the principal debt or be refunded to Maker, at Payee's option. Pa y ~uc, - -
reduction or refunding shall not cure or waive any default by Maker hereunder or under the
· Mortgage. Maker agrees that in determining whether or not any interest payable under tSis .Note
or the Mort.gage. exceeds the highest rate permitted by applicable, laws, any non-principal ·
payment..(except payments Specifically stated in this Note to be "interest") including, but without
limitation, late charges, shall be deemed to ~e extent permitted by law to be an expense, fee,
or premium, rather than interest.
Maker hereby waives presentxnent, notice of dishonor, protest, and any other notices or
demands in connection with the delivery, acceptance, performance, default, or enforcement of
this Note, and all other requirements necessary to hold Maker liable on this Note. Maker
further waives any "venue privilege" and any "diversity of citizenship privilege" which Maker
may have now or in the future, and does hereby specifically agree, notwithstanding the provision
of any state or federal law to the contrary, that the venue for the enforcement, construction or
interpretation of this Note shall be the County Court or Circuit Court selected by payee, and
Maker does hereby specifically waive the fight to sue or be sued in the court of any other county
in the State of Florida, any court in any other state or country or in any federal court, or in any
state or federal administrative tribunal.
In the event of invalidity or unenforceability of any provision of this Note or of the
Mortgage, the said provision shall be deemed stricken and the balance of the provisions of this
Note or the Mortgage, as the case may be, shall remain in full force and effect as if the invalid
or unenforceable provision never existed.
It is agreed that on failure to pay the t3rincipal of this Note, or any installment thereof,
or any interest thereon, when due and payable, Maker shall pay to Payee all costs of collection
including, but not limited to, reasonable attorneys fees, plus any costs incurred, whether incurred
with respect to collection, trial, appeal, enforcement or any judgment based on this Note, or
otherwise. Payee is hereby given a lien upon and a security interest in and a right of set-off
against all property of every party comprising Maker and of any other parties now or hereafter
becoming liable for repayment of this Note now or at any time hereafter in the possession or
control of Payee for any purpose or any capacity whatsoever, and Payee shall have the same
rights to such property as Payee has with respect to the property which is subject to the
Mortgage.
If any of said installments of principal or interest shall not be paid when due or if a
default occurs in the performance of any other agreement in this Note or in the Mortgage; or
if a default occurs in the performance of any other obligation or note of Maker to Payee which
default is not cured within the time provided therefore (if any), then the entire principal sum and
accrued interest shall immediately become due and payable without notice at the option of the
Payee, time being of the essence of this Note. Failure to exercise such option shall not
constitute a waiver of the right to exercise the same in the event of any subsequent default. All
of the covenants, conditions, and agreements contained in the Mortgage are hereby made a part
of this Note. ·
OR: 2331 PG: 2847
~AR~C'N COLL~
FtL~ NUMBER
A default by Maker under any of the terms, conditions, or covenants of any superior or
inferior note or other obligation of Maker shall ipso facto be a default under this Note, and
Payee may, at. Payee's option, accelerate the outstanding principal balance of this Note together
with alt accrued interest and. the same shall immediately become due and payable in full.
Maker consents to any extensions or renewals or modifications of this Note, or any part
hereof, without notice, and Maker agrees to remain liable during any such extension or renewal
or modification hereof until the entire indebtedness evidenced by this Note is fully paid.
Maker reserves the right to prepay the principal balance of this Note, in full or in part,
upon thirty (30) days pr/or written notice to Payee, without premium or penalty, but at the
Payee's option any' partial prepayment of principal shall be applied against the installments of
principal coming due in the inverse order of their maturity.
Maker promises to pay Payee a "late charge" not to exceed an amount equal to five (5 %)
percent of any installment of principal or interest which is not paid within ten (10) days after the
due date thereof.
Ail payments made on this Note (including any regular installments, prepayments, and
payments after acceleration) shall be applied lb-st to the payment of any late charges, then to
reduction of any unreimbursed advances, then to accrued interest and the balance remaining shall
be applied to the payment of the principal sum.
Maker and Payee hereby knowingly, voluntarily and intentionally waive any and all fight
they may have to a trial by jury in respect to any litigation (including but not limited to any
claims, cross-claims, or third parry claims) arising in connection with this Note, the Mortgage,
or the transactions contemplated therein and all and any combination of the foregoing. Maker
hereby certifies that no representative or agent of Payee, or Payee's counsel, has represented,
expressly or otherwise, that Payee would not, in the event of such litigation, seek to enforce this
waiver of fight to jury trial provision. Maker acknowledges that Payee has been induced to
enter into this loan transaction, and to accept the Note and Mortgage, by the provisions of this
paragraph.
Neither tiffs Note nor any provision of this Note may be waived, modified, discharged,
or otherwise changed orally.
This Note shall be construed in all respects and enforced according to the laws of the
State of Florida.
3
OR: 2331
PG: 2849
EXHIBIT "5"
DESCRIPTION O? PART OF- TRACT 'A° OF GREY OAKS UNIT NINE.
PLAT 800K 28, PAGES 22 TH.~OU~'H 26,
COLLIER couNrc. FLORIOA.
('PHASE TWO)
,~ZL THAT PART OF TRACT 'A- OF GREY OAKS UNIT N/NE, AS RECORDED IN PLAT BOOK 28, PAGES 22 THROUGH 28. PUBLIC
RECORDS OF COLLIER COUNI~, FLORIOA BEING Z~ORE PARDCULARL Y DESCRIBED AS FOLLO~ES;
BEGINNING AT THE N(BRrHZAST CORNER OF SAID TRACT
THENCE ALO~G THE BOUNDARY OF SAIO TRACT 'A' ANO ALONG rile WESTE~eLY ,eIGHT OF 'WAY LINE OF GREY OAKS DRIV~=~o:-y
OA}(S UNIT N/NE AS RECOROED IN PLAT BOOK 28. PAGES 22 THROUGH 26, PUBLIC RECORDS OF COLLIER COUNTY. FLOR/z~
SOUTHERLY. 257.42 FEET ALONG THE ARC OF A CIRCULAR CONCAVE TO THE WEST. HAVING A RADIUS OF 2516.72 FEET, ?~,~
CENTRAL ANGLE OF 05'26'2J' ANO BEING SUBTENDED BY A CHORD WHICH BEARS SOUTH 00'29'41' WEST 267. J2 FEEl-
[0 A POINT OF CO~ZPOU?¢O CURVATURE:
[HENCE coNrINL~E SOUTHWESTERLY. 219.8~ FEET ALONG THE ARC OF A CIRCULAR CONCAVE ?0 THE NORTH~KESF. HAWZ~G A RAO;US
483.00 FEET. THROUGH A CENTRAL ANGLE OF 26'06',~3~ AND BEING SUBTENDED BY A CHORD WHICH BEARS SOUTH
16'15'I4' WES? 2~7.95 FEET,.
THENCE LEAVZNG SAID LINE ANO ALONG A NON-TANGENUAL LINE NORTH 5742'55' WEST 197.79 z-EET:
1-HENCE NORTHEASTERLY. 32.66 FEET ALC~!G THE ARC OF A NON-TANGENTIAL CIRCULAR CONCAVE [0 THE SOUTHEAST. HAVING A
OF J~2.00 FE.~ THROUGH A CENTRAL ANGLE OF 05'59'5,7' AND BEING SUBTENOED BY A CHORO 'WHICH BEARS NORTH
28'29'0.T' EAST ~2.6~ FEEL;
THENC£ ALONG A NON-TANGENTL4L LINE NORTH 64'34'~I' WEST 13L60 FEE~:
THENCE SOUTHWESTERLY. 14.59 FEET ALONG THE ARC OF A NON-TANC, ENDAL CIRCULAR C~'~CAVE TO THE NORTH,'EST, HAVZ, N¢ ,~ R~OIUS
OF ~J6.00 FEET~. THROUOH A CENTRAL ANGLE OF' 01'§$'01' AND BEIN¢ SUBTENDED BY A CHORO ~/HIOH BEARS SOUTH
~9'~8'~E' 'WES? I4.$9 FEET..
THENCE ALONG A NON-TANGENtiAL LINE NORTH 69'I~'42' WEST 48.00 FEET,.
THENCE NORTH. EASTERLY. '~2.~8 FEET ALONG THE ARC OF A NON-TANGENTIAL CIRCULAR CONCAVE TO i'H~F NORTHWEST. HAWNG A R/OIL'S
OF-.IRS. 00 FE_FT. THROUGH A CENTRAL ANGLE OF' 06'~$'£9' AND BEING SUBTENDED BY A CHORD WHICH BEARS NORTH
~ 2'38'34° EAST 42.36 FEET ~0 A POINT OF CO/WPOUND CURVATUeE:
THENCE NORTHEASTERLY. 25.62 FEET ALO~ THE ARC OF A CIRCULAR CONCAVE ro THE SOUTHEAST. HAWNG A RADIUS OF 2~2.00 FEEL,.
THROUGH A CENfl?AL ANGLE OF 06~$5'32' AND BEING SUBTENOED BY A CHORD WHICH BEAP. S NORTH I F'$8'JS' EAST
£$.6I FEE'C:
THENCE ALONG A NON-rANCENrlAL LINE NORTH 65'~7'2I' WEST 11II¢ FEET rO A POINT ON THE BOUNOARY OF SAID
THENCE ALONG THE BOUNOARY OF SAID lleACr "A' NORTH 2,~'12'~9' EAST ~95.28 FEELS,.
THENCE CONT~UE ALONG SAIO BOUNOARY SOUTH 86~52'~7' EAST 387.89 FEET ro A POINT ON THE 'WESTERLY RIGHT OF 'WAY
L/NE OF SAID GREY OAKS DRIVE ANO THE POINT OF BEGINNING OF ~WE PARCEL H~EIN OESCRIBEZ): :
CONTAINING 3.50 ACRES t~ORE OR LESS: -
SUBJECT ?0 EASEX~ENPS AND RESFRICI~ONS 0£ RECORD.
BEARINGS ARE BASED ON i-HE NORTH LINE OF SAIO I'RACT 'A' BEIN¢ SOUTH 8Z~52'I7' EAST.
OR: 2331 PG:
THE PROPER FLORIDA DOCUMENTARY STAMP TAX HAS BEEN PAID AND
THE PROPER DOCUMENTARY STAMPS HAVE BEEN AFFIXED TO THE MORTGAGE
SECURING THIS NOTE.
MAKER:
Wimesses:
Print ,Name
Signar~,e
Print Name
TERRA VERDE AT GREY OAKS, LTD.,
a Florida Limited Partnership
By: Florida Bay, Inc., .so/l~¢,'
General~/~
By:
Its:
banking~ls ta~[pro rnno
4
C0!L R COUNTY GOVERNMENT
COMMUNITY DEVELOPMENT AND
ENVIRONMENTAL SERVICES DIVISION
2800 NORTH HORSESHOE DRIVE
NAPLES, FLORIDA 34104
ENGINEERING REVIEW SECTION
May 14, 1998
Justin Martin
Wilson, Miller, Barton & Peek, Inc.
3200 Bailey Lane, Suite 200
Naples, Florida 34105
Re: Grey Oaks, Unit 9, Terra Verde
Dear Mr. Martin:
This is to inform you that the above referenced project has been granted preliminary approval on
May 14, 1998 by Engineering Review in compliance with Collier County Land Development
Code, Section 3. All water and/or sewer facilities approved, accepted and required to be
maintained by Collier County shall be conveyed to the County pursuant to the provisions set
forth in Collier County Ordinance No. 97-17, as amended.
You are reminded that it is your responsibility to petition the Development Services Director for
final approval of the improvements upon the expiration of the minimum one (1) year
maintenance period. After satisfactory completion of all final inspections., the Board of County
Commissioners shall grant final approval of the required improvements establishing County
responsibility for maintenance of the required improvements if it is the Board's desire to accept
and maintain the facilities.
If you should have any questions or if we may be of assistance, please advise.
Very truly yours,
Engineering Technician II
cc: Nick Shepherd, Florida Bay, Inc.
Tim Clemons, Wastewater Director
Cind35 Erb, Public Works
John Hg~ldsworth, Engineering Review
Building Review & Permitting (941) 403-2400
Code Enforcement (941) 403-2440
Housing & Urban Improvement (941) 403-2330
Natural Resources
Planning Services
Pollution Control
(941) 732-2505
(941) 403-2300
(941) 732-2502
I FIFTH AVENUE SOUTH, SUITE :310
82 / ~ 25-80/440
/
Security features
[]inc luded.
DOLLARS Deta,s on back.
Official Receipt - Collier County Board of County Commissioners
CDPR1103 - Official Receipt
Trans Number Date I Post Date
74234 5/14/98 2:02:58 PM I 5/14/98
Payment ~lip Nbr
MS 36529
Sub-Div: Terra Verde at Grey Oaks, A Condominium
Payor · MERRIL LYNCH PIERCE FENNER & SMITH
Fee Information
Fee Code I Description I GL Account
12BOND DEPOSITS-COMM DEV (CASH BOND 67000000022011300000
Amount
$1623.50
Total
$1623.50
Waived
lPayment Code
CHECK
Payments
I AccountJCheck Number
983
Amount
$1623.50
Memo:
Total Cash i $0.00 I
Total Non-Cash ~ $1623.50
Total Paid [ $1623.501
Cashier/location: FROLOFF E / 1
User: NIX S
Collier County Board of County Commissioners
CD-Plus for Windows 95/NT
Printed:5/14/98 2:04:04 PM
February 20, 1998
Mr. Thomas Kuck, P.E.
Senior Project Manager
Collier County Engineering Review Services
2800 North Horseshoe Drive
Naples, FL 34104
Subject:
Grey Oaks Unit Nine, Tract A (Terra Verde at Grey Oaks) /~F ~'~?~.'~ .?/"'~ :'~-~
Utility Dedication
Engineer's Payment Confirmation
Collier County Conveyance Document Checklist, Legal Documents Item 16
Dear Mr. Kuck:
Wilson Miller confirms receiving payment for our services to date on the subject project. As of
this date, no monies are outstanding from the owner (client).
Sincerely,
WILSON, MI , INC.
JO St g
Senior Associate
CC'
Jim Ink, Grey Oaks Development
Nanette Alvarado, WMB&P, Inc.
2/20/98-38280 Vet: 01 !-CHAYES
N0120-026-000-ECOR- 19636
WILSON, MILLER, BARTON ~- PEEK,
3200 Bailey Lane, Suite 200, Naples, Florida 34105-8507 ' Ph 941-649-4040 Fx 941-643-5716
Web ~ite: www. wilsonmillcr.com E-mail: naplcsOwilsonmiller.com
03/12/98 THU 15:09 FAX 941 643 5716
WILSON MILLER
001
Department of
Environmental Protection
L~w~on Chiles
Governor
Tom
Nick Shep'.~erd, president
Florida Bay, Inc.
2640 Gold~-n Gate Parkway, suite 115
Naples, Florida 34105
South District
2295 Victoria Avenue, Suite 364
Fort Myers, Florida 33901-3881
March 10, 1998
Virginia B. Wetherell
Secretary
RECEIVED
RE: Collier county - PW
~rey Oaks Unit Nine, Tract A
(Terra Verde at Grey Oaks)
Phase One Completion Only
(City of Naples WTP)
126356-001-DSGP
Dear lq~. Shepherd:
This acknowledges receipt of certification that the subject water
distribution system extension has been partially completed in...
accordance with the plans and related materials permitted by =nls
agency ur~der Permit Nu~Lber 126356-001-DS~P dttted August 26, 1997.
Based on this certification and satisfactory bacteriological
results, we are approving these facilities for service. Your
continue([ cooperation in our water supply program is appreciated.
Sincerely,
Mai~r
ProfesSional Engineer
GAM/OJO/:skw
cc: John Steven Kempton, P.E.
Ronald A. Wallace, P.E.
"ProteCt, Conserve nnd Menage Florida's ErlvJronmen: and NcRuroJ Resources"
Pd~ted on recycled p~per,
03/15/98 ~,~UN 14:54 F/L[ 941 643 5716 WILSON MILLER ~002
~o~r~r
Department of
Environmental Protection
Sour~
~Or~ ~lyers, Flarida 33gO1-3~1
Msr~ 13, 1995
Timothy l,. Cl~ttona, Wastewater Director
Co~ Cc~ ~c Wor~ D~on
3301 ~ T~ T~, Buil~ H. ~g E~
N~I~, ~L 3411~
_Collier ComlW - DW
C~ey Ostcs U~t 9, Tract A
Tera Verde la Gre~ O~.s
505~ 1-O11-DWC
Worth l~Si~ WW~)
Dear )~, Cl~noms:
S~ction ..Mam~gc'r
,ser~e and Menage Florida's Environment and Natural Resources"
~nr~ an ~c~ puWr.
CONTRACTOR' S CERTIFICATION
On this 20th day of November , 1997 , the UNDERSIGNED (hereinafter
referred to as "CONTRACTOR" ) HEREBY CERTIFIES to
Collier County Utilities
(hereinafter referred to as "OWNER") the follow:ing:
WAIVER OF LIEN
All labor employed, material purchased, equipment hired, fees, licenses,
insurances and taxes of every description have been paid in fn].l and
there are no liens outstanding for said project . Contractor further
certifies that he will indemnify and save harmless the Owner from any
and all manner of claims, liens, suits, loss or damage arising by virtue
of Contractor or Contractor's subcontractors or suppliers.
WARRANTY AND GUARANTEE
If within one year after the date of acceptance by Owner or such longer
period of time as may be prescribed by law or by the terms of any
applicable special guarantee required by the Project Engineer, an5/ work
is found to be defective, Contractor shall promptly, without cost to
Owner in accordance with Owner's written instructions, either correct
such defective work or, if it has been rejected by Owner, remove it from
the site and replace it with nondefective work. If Contractor does not
promptly comply with the terms of such instructions, or Jn an emergency
where delay would cause serious risk of loss or damage, Owner may have
the defective work corrected or the rejected work removed and repl. aced,
and all direct and indirect costs of such removal and replacement, in-
cluding compensation for additional professional services, shall be paid
by Contractor.
INDEMNI FICATION
The Contractor shal] indemn~ fy and hold harmless tl~e Owner against all
claims, damages, losses and expenses, ~ncluding, but not limi. ted
attorney's fees, arising out of or resulting from negligent acts, errors
or omissions of the Contractor where the claim, damage, loss or expense
is attributable to bodily injury, sickness, disease or death, or injury
to or destruction of tangible property, including loss of use resulting
therefrom.
COST AND MATERIAL
A detailed accounting of all cost and all quantities of material used
this project, per the as-bni] t and record drawSngs, [s attached as Page
2 of 2, Exhibit "A" and made a part: of this certification.
TIlE UNDERSIGNED person, or persons, is authorized to represent the company,
corporation, representative or individual (Contractor) and blnds himse.l f,
his partners, successors, execntors, administrators, assigns and legal
representatives to the above.
Tierre Verde at Grey Oaks
PRO.IECT NAME OF WATER AND/OR
WASTEWATER SYSTEM
Guymann Construction of Florida~ Inc.
CONTRACTOR
~worn to and subscribed
before
day ~f ,
19 ~
5686 Youngquist Road
Ft. Myers, FL 33912
Fred Russell, PE/Vice-President
NAME AND 'FITI, E)
Page I of 2
CONTRACTOR'S CERTIFICATION
TOTAL COST AND QUANTITIES
PROJECT NAME: Tierre Verde at Grey Oaks
WATER SYSTEM
WASTEWATER 'SYSTEM
WASTEWATER PUMPING SYSTEM
X
This is a detailed accounting of all. cost and al ] quantities
of materials used and installed in this project per the
asbuilt and record drawings wi tb each item separate] y
described by size, quantity, unit price and total cos~:.
Include full description and quantity installed for each
category. The mobilization, restoration, pavement repair,
testing, etc. is included in the appropriate individual
line item cost listed below.
ITEM DESCRIPTION SIZE QUANTITY UNIT COSTI TOTAl,
Connect to Existin~ 8" 1EA 500.00 500.00
PVC Gravity Sewer 6'-8' 8" 192 LF 27.00 5,184.00
PVC Gravity Sewer 8'-10' 8" 131LF 31.00 4,061.00
Sanitary M~nhole 8'-10' 4' dia. 1EA 1,560.00 __~ 1,560.00
Sanitary Manhole 10'-12' 4' dia. 1EA 1,830.00 1,830.00
PVC Sanitary Lateral 6" 274 LF 10.00 2,740.00
PVC Cleanout 6" 6 EA 60.00 360.0C
WASTEWATER SYSTEM TOTAL: 16,235.0¢
Page 2 of 2
Januaary 26, 1998
Mr. Thomas Kuck, P.E.
Senior Project Manager
Collier County Engineering Review Services
2800 North Horseshoe Drive
Naples, FL 34104
SUBJECT:
Terra Verde at Grey Oaks
Utility Dedication Engineer's Certification
Dear Mr. Kuck:
Please accept this letter as representation that in our professional judgement and to the best of our
knowledge and belief the sanitary sewer collection system for Terra Verde at Grey Oaks has been
completed in substantial accordance with the enclosed plans, WMB&P, Inc., Drawing File No D-1354,
and specifications approved by Collier County Engineering Review Services.
Furthermore, to the best of our knowledge and belief, the subject sewer facilities have been constructed
by the contractor within the public right-of-way and/or dedicated easements.
Please contact Tonya Rue at this office should you have any questions regarding this matter.
Sincerely, ,
WlL~ON & PEEK,
Johnffteven Kem~on, P.E.
Encls.
Nick Shepherd, Florida Bay Homes, w/o enclosures
Jim Ink, Grey Oaks Development Corp., w/enclosures
Tonya Rue, WMB&P, Inc., w/o enclosures
Engineer's Signature and Sea
I/9/9g-36614 V~:. 01 I-TRue
N0120-026-000-EDED- 19643
WILSON, MILLER, BARTON ~ PEEK, INC.
3200 Bailey Lane, Suite 200, Naples, Florida 34105-8507 · Ph 941-649-4040 Fx 941-643-5716
Web Site: www. wilsonmiller.com E-mail: naples@wilsonmillcr, com
CONTRACTOR'S CERTIFICATION
On this 20th day of November , 1997 , the UNDERSIGNEI) (hereinafter
referred to as "CONTRACTOR") ItEREBY CERTIFIES to
Collier County Utilities
(hereinafter referred to as "OWNER") the following:
WAIVER OF LIEN
Ail labor employed, material purchased, equipmeut hired, fees, licenses,
insurances and taxes of every description have been paid in fu].] and
there are no liens outstanding for said project. Contractor fnrther
certifies that he will indemnify and save harmless the Owner from any
and all manner of claims, liens, suits, loss or damage arising by virtue
of Contractor or Contractor ' s subcontractors or suppliers.
WARRANTY AND GUARANTEE
If within one year after the date of acceptance by Owner or such longer
period of time as may be prescribed by law or by the terms of any
applicable special guarantee required by the Project Engineer, aris/ work
is found to be defective, Contractor shall promptly, without cost to
Owner in accordance with Owner's written instructions, either correct
such defective work or, if it has been rejected by Owner, remove it from
the site and replace it with nondefect.ive work. If Contractor does not
promptly comply with the terms of snch instructions, or ~n an emergency
where delay would cause serious risk of loss or damage, Owner may have
the defective work corrected or the rejected work removed and replaced,
and all direct and j. ndirect costs of such removal and replacement, in-
cluding compensation for additional professional services, sha]] be paid
by Contractor.
INDEMNIFICATION
Tile Contractor shall indemnJ fy and hold harmless ~l~e Owner against a1_l
claims, damages, losses and expenses, including, l)ut not limJ. ted t:o,
attorney's fees, arising out of or resulting from negligent acts, errors
or omissions of the Contractor where the claim, damage, loss or expense
is attributable to bodily injury, sickness, disease or death, or injnry
to or destructJ, on of tangible property, including loss of use resulting
therefrom.
COST AND MATERIAL
A detailed accounting of all. cost and all quantities of material used
this project, per the as-bull t and record drawings, :is attached as Page
2 of 2, Exhibit "A" and made a part of this certi fi. cation.
TtIE UNDERSIGNED person, or persons, is authori, zed to represent the company,
corporation, representative or |nd.iv|dual (Contractor) and binds himse.l f,
his partners, successors, executors, admJ. n:[strators, assigns and legal
representatives to the above .
Tierre Verde at Grey Oaks
PROJECT NAME OF WATER AND/OR
WASTIgWATER SYSTEM
Guymann Construction of Florida~ Inc.
CON'rRACTOR
Sworn to and subscribed
before ,~~
day~f19 '
ARY PUBLIC
5686 Youngquist Road
Ft. Myers, FL 33912
Fred Russell, PE/Vice-President
(NAME AND TITI, E)
Page i of 2
January 26, 1998
Mr. Thomas Kuck, P.E.
Senior Project Manager
Collier County Engineering Review Services
2800 North Horseshoe Drive
Naples, FL 34104
SUBJECT:
Terra Verde at Grey Oaks
Fire Flow Certification
Dear Mr. Kuck:
Please accept this letter as representation that in our professional judgement and to the best of our
knowledge and belief, the water mains have been designed to provide fire flow to the project as
reviewed and approved by Collier County Engineering Review Services.
If you should have any questions, please do not hesitate to contact Tonya Rue of our office.
Sincerely,
TON
John jgteven .Ken}{pton, P.E.
Senior Associatd
& PEEK, INC.
CCi
Jim Ink, Grey Oaks Development Corp.
Tonya Rue, WMB&P, Inc.
Engineer's Signature and Seal
1/26/98-37298 Va': OI !-MSale
N0120-026-000-EDED-19643
WiI.$ON, MILLER, BARTON t~. PEEK, INC.
3200 Bailey Lane, Suite 200, Naples, Florida ;34105-8507 ' Ph 941-649-4040 Fx 941-643-5716
Web Site: www. wilsonrail[er.com E-maih 1, aplcsCa2wilsommller.com
January 26, 1998
Mr. Thomas Kuck, P.E.
Senior Project Manager
Collier County Engineering Review Services
2800 North Horseshoe Drive
Naples, FL 34104
SUBJECT:
Terra Verde at Grey Oaks
Utility Testing Results
Dear Mr. Kuck:
The following attached tests for the subject project are in our professional judgement and to the best of
our knowledge and belief representative of actual field conditions on the date performed:
Inflow/m_filtration test dated January 22, 1998
If you should have any questions, please do not hesitate to contact Tonya Rue at our office.
Sincerely,
PEEK, INC.
CC~
Nick Shepherd, Florida Bay Homes, w/enclosures
Jim Ink, Grey Oaks Development Corp., w/enclosures
Tonya Rue, WMB&P, Inc., w/o enclosures
Engineer' s S~gnature and Seal
1/9/98-36627 Ve~. OH-TRue
N0120-026-000-ED£D-19643
WILSON, MILLER, BARTON & PEEK, INC.
3200 Bailey Lane, Suite 200, Naples, Florida 34105-8507 ° Ph 941-649-4040 Fx 941-643-5716
Web Site: www. wilsonmiller.com E-mail: naples@wilsonmdler.conx
SANITARY SEWER SYSTEM
INFILTRATION REPORT
PROJECT:
DATE:
CRITERIA'
*50 gallons per inch of internal pipe diameter
per mile per day including manholes or as
required by the specifications.
An infiltration and/or inflow observation was made on the subject
project. The results are as follows:
*Gal
~31~ LF x ~ in. Dis x 50
Day
5280 LF in. Dia
MI
x 1 $al
24 hr x 60 gal. = d,0& min
day min
From To
Gallons per
Minute Measured
Gallons per
Minute Allowable
L-~, MH# [ MH~
GPM ~'OL GPM
Prepared by: ~~
Revised 1/8'6 G1
TIM WILSON UTILITY SERVICES
20250 KEOLA LN.
N. FT. MYERS, FL. 33917
BOARD OF COLLIER COUNTY COMMISSIONERS
3301 TAMIAMI TRAIL EAST
NAPLES, FLORIDA 33964
RE:
MANHOLE COATING CERTIFICATION
SANITARY SEWER SYSTEM
TERRA VERDE @ GREY OAKS
COLLIER COUNTY
NAPLES, FLORIDA
GENTLEMEN:
THIS LETTER IS TO CERTIFY THE COATING ON THE MANHOLES LOCATED AT
TERRA VERDE @ GREY OAKS .TIM WILSON UTILITY SERVICES CERTIFIES
THAT THE COATING HAS BEEN APPLIED IN A MINIMUM THICKNESS OF 18 MILS DFT.
EXTERIOR SURFACE AND A MINIMUM OF 18 MILS DFT., IN TWO COATS, ON THE
INTERIOR SURFACE OF THE MANHOLES. TIM WILSON UTILITY SERVICES CERTIFIES THAT
THE PRODUCT MOBILE PAINTS, MO-TAR C-200 , IS AN APPROVED EPOXY
BITUMINOUS SEALANT.
SINCERELY,
TIM WILSON / ART WILSON
COLLIER COUNTy UTILITIES
W~STEWATER DEP]~RTMENT
PROJECT VIDEO REVIEW
DATE OF REVIEW: 02/04/98
PROJECT NAMe: Grey Oaks, Unit 9, Terra Verde
ENGINEER OF RECORD: N/A
CONSTRUCTION CONTRACTOR: Guymann Const.
VIDEO CONTRACTOR: Sewer Viewer, Inc.
COMMENTS: Lines and services are in good condition.
RECOMMENDATIONS:
~ ACCEPTABLE:
~ REVIEW NUMBERED COMMENTS IN ONE YEAR:
{ ! NUMBERED COMMENTS UNACCEPTABLE: (REPAIR/REPLACE)
~ OTHER RECOMMENDATIONS:
COLLIER COUNTY GOVERNMENT
COMMUNITY DEVELOPMENT AND
ENVIRONMENTAL SERVICES DIVISION
PLANNING SERVICES DEPARTMENT
ENGINEERING REVIEW SECTION
January22,1998
Mr. Steve Kempton
WILSON, MILLER, BARTON & PEEK
3200 BAILEY LANE, SUITE 200
NAPLES, FLORIDA 34105
2800 NORTH HORSESHOE DRIVE
NAPLES, FLORIDA 34104
RE: Grey Oaks, Unit 9, Tract A at Terra Verda, Water & Sewer
Dear Kempton:
A preliminary inspection of the referenced project was conducted by Randy Casey of the Engineering
Review Section of the Planning Services Department on January 22, 1998. Conditions were found to be
acceptable, and appear to meet County Standards.
If you should have any questions, please do not hesitate to call Randy Casey at (941) 643-8418 or Clyde
Fugate at (941)403-2417.
Sincerely,
ClydeS/Fugate ~
Engineering Inspection Supervisor
CF/rc/mk/fi~Inspection form
cc:
Cindy Erb, Engineering Technician, Public Works
Timothy L. Clemons, Wastewater Director, Utilities
Mike Newman, Water Director, Utilities
Evelyn Ferguson, D.O.R. Billing Supervisor
Randy Casey, Engineering Inspector, Engineering Review Section
Shirley Nix, Engineering Tech. II, Engineering Review Section
File
Building Review & Permitting
Code Enforcement
Housing & Urban Improvement
(941) 403-2400
(941) 403-2440
(941) 403-2330
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(941) 732-2505
(941) 403-2300
(941) 732-2502