UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
CURRENT REPORT
FORM 8-K/A
Amendment No. 1
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
July 30, 2002
Date of Report (Date of earliest event reported)
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
Wisconsin 0-21455 39-1518732
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification
No.)
N19 W24130 Riverwood Drive, Suite 100
Waukesha, WI 53188
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(262) 522-8990
ITEM 2: Acquisition or Disposition of Assets
This Amendment is being filed to include certain unaudited
financial statements and information and the required pro forma
financial information that was not prepared as of the original
filing date, and certain other exhibits.
On July 30, 2002, the Partnership purchased two office buildings,
consisting of approximately 166,000 rentable square feet, located
in Florida.
The Spectrum Building (Spectrum) is located at 900 Winderly Place
in the Maitland Center office park in Maitland, Orange County,
Florida. Spectrum is a class B, two-story, 125,098 square foot
(with approximately 113,000 rentable square feet) atrium-style
office building, built in 1986. The land area is approximately
9.28 acres and consists of approximately 409 grade level parking
spaces. The Maitland Center office park is adjacent to
Interstate 4. Occupancy was approximately 41% on the date of
closing, and varies.
Plymouth Plaza (Plymouth) is located at 26750 U.S. 19 North in
the North Pinellas office submarket in Clearwater, Pinellas
County, Florida. Plymouth is a class A, five-story, 53,723
rentable square foot office building. The building includes a
354 car, five level parking garage and 47 surface spaces. The
property has access from Countryside Boulevard and U.S. 19
service road. Occupancy was approximately 79% on the date of
closing, and varies. The former owner of Plymouth retained
approximately 4.5 acres of vacant land adjacent to Plymouth. The
Partnership agreed to enter into a lease agreement with the owner
of the vacant parcel for parking privleges in the parking garage
owned by the Partnership.
Spectrum and Plymouth are hereinafter collectively referred to as
the Properties.
The purchase price of the Properties was approximately $10.2
million, plus closing costs of approximately $160,000
(estimated). The properties are encumbered by a first mortgage
loan of approximately $10,075,000. At closing, the Partnership
gave cash consideration of approximately $125,000 over the
mortgage balance and purchased the properties subject to the
mortgage.
Spectrum was purchased from ABR Spectrum, Ltd. (ABR Spectrum), a
Florida limited partnership, an unaffiliated party. Plymouth was
purchased from ABR Plymouth Plaza, Ltd. (ABR Plymouth), a
Florida limited partnership, an unaffiliated party. ABR Spectrum
and ABR Plymouth are hereinafter collectively referred to as the
Sellers. There is no material relationship between the Sellers
and the Partnership or any of the Partnership's affiliates, any
general partner, director or officer of the Partnership, or any
associate of any such general partner, director or officer.
The Partnership's source of the funds used in this transaction
consisted of cash proceeds held in the Exchange Escrow from the
sale of The Meadows II Apartments on January 31, 2002. The
existing nonrecourse first mortgage loan of approximately
$10,075,000 encumbers the Properties.
The nonrecourse mortgage loan (the Note) bears interest on the
outstanding principal balance from July 1, 1997 (the Date of
Loan) through and including August 1, 2007 (the Maturity Date) at
the fixed rate of 8.46% per annum. The Note provides for monthly
payments of principal and interest of $87,074.87. The required
loan payments amortize the principal balance over a 25-year
period. There is a penalty for prepayment of the loan amount
that is currently approximately $2.1 million. The note may be
prepaid in full, but not in part, on the first day of any
calendar month, upon 90 days prior notice to Lender and upon
payment in full of all amounts payable under the loan documents
(which will include a prepayment penalty). The prepayment
penalty will consist of the greater of (1) 2% of the outstanding
loan principal balance and (2) an amount computed under a yield
maintenance formula defined in the Note.
The Partnership requested Lender approval prior to closing but
was unable to obtain it due to the Lender's time constraints. The
Lender however did indicate a willingness to work with the
Partnership/affiliates to achieve a satisfactory result. Those
negotiations are ongoing and may include the purchase of the Note
from the Lender by the Partnership and affiliates of the General
Partner.
The Partnership did not pay an acquisition fee to the General
Partner, or any affiliate, in connection with its acquisition of
the Properties (such as real estate commissions, selection fees
or development fees). The Sellers also did not pay a fee to the
General Partner, or any affiliate, in connection with the
transaction. However, the partnership incurred a real estate
commission payable to an unaffiliated broker in the amount of
$150,000.
The Properties were used by the Sellers as commercial office
buildings and the Partnership intends to continue such use.
The foregoing description of the purchase of the Properties does
not purport to be complete and is qualified in its entirety by
reference to the agreements between the parties.
ITEM 7: Financial Statements and Exhibits
(a) Financial statements of businesses acquired.
It is impracticable at this time to provide the
required audited financial information. Although the
Seller is contractually obligated to provide access to
their books and records, they have not permitted access
to the financial records to permit the audits to be
completed at the time this Form 8-K/A is being filed.
The Registrant will file the required financial
information as an amendment to this report as soon as
practicable.
The following unaudited financial statements are filed
herewith:
Unaudited financial statements of operating income and
certain expenses for ABR Spectrum for the six months ended
June 30, 2002 and the year ended December 31, 2001.
Notes to the unaudited financial statements of ABR Spectrum.
Unaudited financial statements of operating income and
certain expenses for ABR Plymouth Plaza for the six months
ended June 30, 2002 and the year ended December 31, 2001.
Notes to the unaudited financial statements of ABR Plymouth
Plaza.
(b) Pro Forma Financial Information
The following required pro forma financial information
is filed herewith:
Pro forma condensed balance sheet at June 30, 2002.
Pro forma condensed statement of income for the year ended
December 31, 2001.
Pro forma condensed statement of income for the three-month
period ended June 30, 2002.
Notes to pro forma financial information.
(c) Exhibits
The Exhibits required under Item 601 of Regulation S-K
are filed herewith. See Exhibit Index following the
Signature Page of this report, which is incorporated
herein by reference.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
Decade Companies Income Properties,
A Limited Partnership
(Registrant)
By: Decade Companies
(General Partner of the Registrant)
Date: October 14, 2002 By: /s/ Jeffrey Keierleber
Jeffrey Keierleber,
Principal Executive Officer and
Principal Financial and
Accounting Officer of the Registrant
Decade Companies Income Properties
(the "Registrant")
(Commission File No. 0-21455)
EXHIBIT INDEX
FORM 8-K CURRENT REPORT
DATE OF REPORT: October 14, 2002
Exhibit FILED
Number Description HEREWITH
99.2 ABR Spectrum Statements of Operating Income and Certain
Expenses for the six months ended June 30, 2002 and the
year ended December 31, 2001 X
99.3 ABR Plymouth Plaza Statements of Operating Income and
Certain Expenses for the six months ended June 30, 2002
and the year ended December 31, 2001 X
99.4 Spectrum - Material factors considered by the
Partnership in assessing the property
99.5 Plymouth Plaza - Material factors considered by the
Partnership in assessing the property
99.6 Pro forma condensed balance sheet as of June 30, 2002
(Annex PF1) X
Pro forma condensed statement of income for the year
ended December 31, 2001 (Annex PF2) X
Pro forma condensed statement of income for the six
months ended June 30, 2002 and Notes (Annex PF3) X
Notes to pro financial statements June 30, 2002 X
10.39 Purchase and Sale Agreement dated as of June 12, 2002
by and between ABR Spectrum, Ltd. and ABR Plymouth
Plaza, Ltd., both Florida limited partnerships X
(collectively, "Seller") and Decade Properties, Inc., a
Wisconsin corporation, or its assigns ("Purchaser"). X
10.40 Letter Agreement dated May 29, 2002 from ABR Plymouth
Plaza, Ltd., and ABR Spectrum, Ltd. and consented to by
Decade Properties, Inc. X
10.41 First Amendment to Purchase and Sale Agreement
effective as of July 29, 2002, by and between ABR
Spectrum, Ltd., a Florida limited partnership, and ABR
Plymouth Plaza, Ltd., a Florida limited partnership
(collectively, "Seller") and Decade Companies Income
Properties, a Limited Partnership, a Wisconsin limited
partnership ("Purchaser"). X
10.42 Renewal Promissory Note in the original amount of
$10,850,000.00, dated July 1, 1997, from ABR Spectrum,
Ltd., a Florida limited partnership, and ABR Plymouth
Plaza, Ltd., a Florida limited partnership,
(collectively, "Borrower") jointly and severally, to
Teachers Insurance and Annuity Association of America
("Lender"), a New York corporation. X
10.43 Consolidated Promissory Note in the original amount of
$10,230,951.88, dated July 1, 1997, from ABR Spectrum,
Ltd., a Florida limited partnership, and ABR Plymouth
Plaza, Ltd., a Florida limited partnership,
(collectively, "Borrower") jointly and severally, to
Teachers Insurance and Annuity Association of America
("Lender"), a New York corporation. X
10.44 Future Advance Promissory Note in the original amount
of $619,048.12, dated July 1, 1997, from ABR Spectrum,
Ltd., a Florida limited partnership, and ABR Plymouth
Plaza, Ltd., a Florida limited partnership,
(collectively, "Borrower") jointly and severally, to
Teachers Insurance and Annuity Association of America
("Lender"), a New York corporation. X
10.45 Assumption Agreement and Consolidation, Renewal and
Restatement of Mortgages and Security Agreements and
Assignments of Leases and Rents and Spreader Agreement
and Notice of Future Advance, dated July 1, 1997, by
and between ABR Plymouth Plaza, Ltd., a Florida limited
partnership, and ABR Spectrum, Ltd., a Florida limited
partnership, (collectively the "Borrower") and Teachers
Insurance and Annuity Association of America, a New
York corporation ("Lender"). X
EXHIBIT 99.2
ABR SPECTRUM
Statements of Operating Income and Certain Expenses
For the six months ended June 30, 2002 and the year ended
December 31, 2001
Unaudited
Six Months Ended Year Ended
June 30, December 31,
2002 2001
Revenue $1,119,979 $2,318,105
Certain operating expenses 327,263 866,798
Excess of operating revenues
over certain expenses $ 792,716 $1,451,307
See note to financial statements
ABR SPECTRUM
Note to Financial Statements
For the six months ended June 30, 2002 and the year ended
December 31, 2001
Note 1. Nature of Operations and Basis of Presentation
Nature of Operations
ABR Spectrum (Spectrum) is a two-story, approximately 125,098
square foot (approximately 113,000 rentable square feet) atrium-
style office building. Spectrum is located at 900 Winderly Place
in the Maitland Center office park in Maitland, Orange County,
Florida. During the periods presented, Spectrum was owned by ABR
Spectrum, Ltd., a Florida limited partnership. Spectrum was
purchased by Decade Companies Income Properties, A Limited
Partnership, a Wisconsin limited partnership (DCIP), on July 30,
2002.
Basis of Presentation:
The accompanying statements of operating revenues and certain
expenses were prepared from financial information submitted to DCIP
by the former owner, ABR Spectrum, Ltd., a Florida limited
partnership.
The accompanying statements of operating revenues and certain
expenses have been prepared in accordance with the cash method of
accounting. This differs from accounting principles generally
accepted in the United States of America which would require that
income be recorded when earned rather than when collected, and
expenses be recorded when incurred rather than when paid.
Consequently, the financial statements do not reflect such accrued
income or expenses.
The accompanying statements of operating revenues and certain
expenses reflect income and expenses that are directly attributable
to the operations of the office building, and that are not
dependent upon a particular owner of the property. As a result,
certain expenses which are included in the accounting records of
the property are not included in the accompanying financial
statements. These expenses are depreciation, amortization,
mortgage interest, office and administrative expenses.
The financial information of Spectrum presented herein does not
necessarily reflect what the results of operations of Spectrum
would have been had it been operated by DCIP during the periods
covered, and may not be indicative of future results of operations.
EXHIBIT 99.3
ABR PLYMOUTH PLAZA
Statements of Operating Income and Certain Expenses
For the six months ended June 30, 2002 and the year ended December
31, 2001
Unaudited
Six Months Ended Year Ended
June 30, December 31,
2002 2001
Revenue $439,661 $1,027,749
Certain operating expenses 178,083 453,633
Excess of operating revenues
over certain expenses $261,578 $ 574,116
See note to financial statements
ABR PLYMOUTH PLAZA
Note to Financial Statements
For the six months ended June 30, 2002 and the year ended December
31, 2001
Note 1. Nature of Operations and Basis of Presentation
Nature of Operations
ABR Plymouth Plaza (Plymouth) is a five-story, approximately
144,532 square foot office building, which includes approximately
54,000 rentable square feet and a 354-car, five-level parking
garage. Plymouth is located at 26750 U.S. Highway 19 North in
Clearwater, Pinellas County, Florida. During the periods
presented, Plymouth was owned by ABR Plymouth Plaza, Ltd., a
Florida limited partnership. Plymouth was purchased by Decade
Companies Income Properties, A Limited Partnership, a Wisconsin
limited partnership (DCIP), on July 30, 2002.
Basis of Presentation:
The accompanying statements of operating revenues and certain
expenses were prepared from financial information submitted to DCIP
by the former owner, ABR Plymouth Plaza, Ltd., a Florida limited
partnership.
The accompanying statements of operating revenues and certain
expenses have been prepared in accordance with the cash method of
accounting. This differs from accounting principles generally
accepted in the United States of America which would require that
income be recorded when earned rather than when collected, and
expenses be recorded when incurred rather than when paid.
Consequently, the financial statements do not reflect such accrued
income or expenses.
The accompanying statements of operating revenues and certain
expenses reflect income and expenses that are directly attributable
to the operations of the office building, and that are not
dependent upon a particular owner of the property. As a result,
certain expenses which are included in the accounting records of
the property are not included in the accompanying financial
statements. These expenses are depreciation, amortization,
mortgage interest, office and administrative expenses.
The financial information of Plymouth presented herein does not
necessarily reflect what the results of operations of Plymouth
would have been had it been operated by DCIP during the periods
covered, and may not be indicative of future results of operations.
EXHIBIT 99.4
Spectrum
Material factors considered by the Partnership in assessing the
property
The material factors considered by the Partnership in assessing the
property are described below, including sources of revenue and
expense:
1. Appraisal.
Spectrum was appraised by an independent MAI appraiser as of
July 1, 1997 at $12,050,000.
2. Sources of revenue
Competition in the office rental market
Spectrum is located in the Maitland Submarket. The majority
of the buildings in this submarket are found in Maitland
Center and Maitland Summit. According to the 1997 appraisal,
the inventory in this submarket totals 3,613,588 square feet.
This is the largest suburban submarket and is the most dense
by area since it is confined to the area along Maitland
Boulevard and west of Interstate 4. According to the 1997
appraisal, the submarket experienced little growth over the
preceding ten years since the only new construction was the
completion of the Allstate buildings (269,000 sf.).
The General Partner believes that rent levels are in line with
the levels indicated by the market as a whole. The primary
influences for the performance as a strong submarket is
excellent access to Interstate 4, limited potential for
additional competition in this submarket, and proximity to the
Central Business District and desirable residential areas to
the north. The neighborhood is also strategically located
within relatively easy driving distance to most other areas of
the metropolitan area.
The 1997 appraisal noted that Spectrum's submarket has matured
through the 1980's and 1990's. It has shown the ability to
absorb major tenant relocations. The presence of national
tenants is evidence that it remains a desirable suburban
office location. The General Partner believes that stabilized
occupancy and the escalation of rents to higher levels are
factors that are expected to strengthen demand for existing
office space within this submarket.
Comparative Rents.
The General Partner believes that the projected average asking
rental rates in the submarket for 2002/2003 will be
approximately $18 to $19 per square foot.
Occupancy Rates
Spectrum is currently approximately 38% occupied. The General
Partner has assumed that approximately 75% of the tenants will
renew their leases and that 25% would have to be re-leased.
Number of tenants occupying ten percent or more of the
rentable square footage and principal nature of business
of such tenants.
One tenant occupied ten percent or more of the rentable square
footage of the building during 2002. Paysys International,
Inc. occupied 60,976 square feet (approximately 54%). Their
lease expired on June 30, 2002 (prior to closing on July 30)
and they did not renew.
Principal business, occupations and professions carried
on in, or from the building.
The buildings and grounds are used primarily for business
office space and the Partnership intends to continue this use.
The average effective annual rental per square foot for
each of the last five years.
Annual
Rental per
Year ended Annual Rent Net Rentable Square
Area Foot
December 31, 1997 N/A 112,223 N/A
December 31, 1998 N/A 112,223 N/A
December 31, 1999 $2,322,059 112,223 $20.69
December 31, 2000 $2,353,806 112,223 $20.97
December 31, 2001 $2,318,106 112,223 $20.66
Schedule of the lease expirations for each of the ten
years starting with the year in which Spectrum was
purchased.
Number of tenants Percentage of
whose leases Square Annual Gross Annual
Year will expire Feet Rent Rent
2002 2 61 659 $1,214,176 60%
2003 8 24,023 $ 490,218 24%
2004 0 0 $ 0 0%
2005 4 7,835 $ 123,730 6%
2006 0 0 $ 0 0%
2007 3 5,877 $ 114,154 6%
2008 0 3,736 $ 70,984 4%
2009 0 0 $ 0 0%
2010 0 0 $ 0 0%
2011 0 0 $ 0 0%
3. Expenses
Utilities and services.
Based on financial information provided by the seller,
electric expense has ranged from $227,419 in 1999 to $255,648
in 2001, and other utilities have ranged from a low of $28,436
in 1999 to a high of $29,488 in 2001. The General Partner has
estimated that for the first 12 months of ownership, the
electric expense will be budgeted at $227,419 and the other
utilities expense will be budgeted at $32,000.
Real estate taxes.
The realty tax rate: Real estate taxes are based on the
improved property market value, multiplied by the 2001
equalized ratio, and the 2001 net tax rate of $17.4579 per
$1,000.
Annual realty taxes: Taxes are levied in the City of Maitland
and Orange County by the taxing authorities empowered to do so
by the Florida State Legislature. The taxable valuation of
each real estate property or tangible personal property is
established by the local appraiser. The Board of County
Commissioners set the millage, or rate of taxation, for the
county; the School Board for the schools; the City Council for
each municipality; and by the governing bodies of other
independent special taxing districts and authorities.
For 2001, Spectrum had total real estate taxes due of
$203,795.
2001 Estimated Annual
Tax Key Taxable Value Realty Taxes
#26-21-29-5468-00094 $11,673,485 $203,795
Maintenance and repairs expenses.
Based on information provided by the seller, this expense
category has varied from a high of $126,366 in 2000 to $93,944
in 2001. The budgeted amount for the first 12 months of
ownership is $97,000.
Total Expenses
According to the financial information provided by the seller,
adding the real estate tax liability, common area expenses,
and management fee, results in total expenses of $863,207,
approximately $7.69 per square foot.
Capital improvements anticipated
The General Partner believes that the property has been well
maintained, and observed little deferred maintenance items of
any significance. The physical incurable depreciation
generally refers to the normal aging that occurs for the
structural components.
Tenant improvements will be required to attract new tenants to
the building. This will be a substantial cost to the
Partnership over the lease-up period. The estimated amount
has yet to be determined.
Depreciation information.
Federal tax basis. In a Section 1031 Exchange, the basis in
the replacement property equals the value of the replacement
property less the amount of gain deferred in the exchange.
Exchange expenses, such as sales commissions, are treated as
money paid by the taxpayer and increase the basis of the
replacement property. The basis in the replacement property
is allocated between land and improvements in proportion to
its relative fair market value. The allocation of basis
between land and improvements of the relinquished property
(The Meadows II Apartments) is irrelevant for these purposes.
Rate. The applicable rate to be used for computing
depreciation for financial statement purposes is 2.5% per year
for the buildings and tenant's improvements, 6.67% for land
improvements, and 14.3% per year for personal property.
Method. The applicable depreciation method to be used for
computing depreciation for financial statement purposes is the
straight line method.
Life claimed. The life to be used to depreciate assets for
financial statement purposes is 40 years for buildings and
improvements, 15 years for land improvements, and seven years
for personal property.
Insurance
Based on information provided by the seller, insurance expense
ranged from $13,992 to $9,718 during 1999-2001. The initial
first year insurance expense will be approximately $14,000.
EXHIBIT 99.5
Plymouth
Material factors considered by the Partnership in assessing the
property
The material factors considered by the Partnership in assessing the
property are described below, including sources of revenue and
expense:
1. Appraisal
Plymouth Plaza was appraised by an independent MAI appraiser
as of July 1, 1997 at $4,800,000.
2. Sources of revenue
Competition in the office rental market
Plymouth Plaza is located in the Tampa Bay region which has
demonstrated growth both throughout its history and since the
beginning of the 1990's. The 1997 appraisal noted that while
the rate of population growth has slowed since 1990, the
Tampa-St. Petersburg-Clearwater Metropolitan statistical
area's economic base remains stable and healthy. The outlook
for the near term is for continued moderate population growth
and economic expansion.
Plymouth Plaza is located on the west side of U.S. Highway 19
North, between Countryside Boulevard and State Road 580 in
northeastern Clearwater, which is the county seat, and it is
a major business center in Pinellas County. The area is
desirable to business users due to its location along one of
the major roadways in Clearwater and Pinellas County, but the
immediate subject area is very heavily developed and there is
little land available for new development. Because of this
lack of available land, development in the area should remain
moderate, and rents and property values should increase
steadily in the foreseeable future.
A review of the eight most comparable office developments, and
the Plymouth Plaza Office Building, indicates that the total
competitive rentable area is estimated to be approximately
900,000 square feet.
Comparative Rents.
Current property rents at the Plymouth Plaza range from $18.04
to $22.95 per square foot. The General Partner believes that
the projected average asking rental rates in the submarket for
2002/2003 will be approximately $17.50 to $18.00 per square
foot.
Occupancy Rates
The Plymouth Plaza Office Building is currently 79% occupied.
Number of tenants occupying ten percent or more of the
rentable square footage and principal nature of business
of such tenants.
Three tenants occupy ten percent or more of the rentable
square footage. Lucent Technology is in the
telecommunications business and occupies 15,464 square feet
(approximately 29%). West Florida Division, Inc. is in the
staffing business and occupies 10,361 square feet
(approximately 19%). Raymond James is in the securities
investment business and occupies 8,549 square feet
(approximately 16%).
Principal business, occupations and professions carried
on in, or from the building.
The building is used primarily for business office space.
The average effective annual rental per square foot for
each of the last five years.
Annual Net Rentable Annual Rental per
Year ended Rent Area Square Foot
December 31, 1997 N/A 53,573 N/A
December 31, 1998 N/A 53,573 N/A
December 31, 1999 $836,543 53,573 $15.62
December 31, 2000 $841,642 53,573 $15.71
December 31, 2001 $1,027,750 53,573 $19.18
Schedule of the lease expirations for each of the ten
years starting with the year in which Plymouth was
purchased.
Number of tenants Percentage of
whose leases Square Annual Gross Annual
Year will expire Feet Rent Rent
2002 0 0 $ 0 0%
2003 1 8,549 $196,162 24%
2004 3 26,753 $497,490 60%
2005 2 6,982 $128,278 16%
2006 0 0 $ 0 0%
2007 0 0 $ 0 0%
2008 0 0 $ 0 0%
2009 0 0 $ 0 0%
2010 0 0 $ 0 0%
2011 0 0 $ 0 0%
3. Expenses
Utilities and services.
Utilities available to the site include municipal water and
sewer service as well as telephone and electric. Based on
financial information provided by the seller, utilities
expenses have ranged from a low of $131,386 in 1999 to a high
of $153,663 in 2001. The General Partner has estimated for
the first 12 months of ownership, the utilities expense will
be budgeted at $150,000.
Real estate taxes.
The realty tax rate: Real estate taxes are based on the
improved property market value, multiplied by the 2001
equalized ratio, and the 2001 net tax rate of $23.0975 per
$1,000. For 2002 the millage rate is expected to be $23.3093
per $1,000.
Annual realty taxes: Taxes are levied in the City of
Clearwater and Pinellas County by the taxing authorities
empowered to do so by the Florida State Legislature. The
taxable valuation of each real estate property or tangible
personal property is established by the local appraiser. The
Board of County Commissioners set the millage, or rate of
taxation, for the county; the School Board for the schools;
the City Council for each municipality; and by the governing
bodies of other independent special taxing districts and
authorities.
For 2001, Plymouth Plaza had total real estate taxes due of
$86,098.
2001 Estimated Annual
Tax Key Taxable Value Realty Taxes
#30/28/16/00000/340/0100 $3,727,600 $86,098
For 2002, the assessed taxable value of Plymouth Plaza was
increase to $4,100,000, which may result in annual realty
taxes estimated to be $95,568.
Maintenance and repairs expenses.
Based on information provided by the seller, this expense
category has varied from a high of $59,474 in 2001 to $48,777
in 1999. The budgeted amount for the first 12 months of
ownership is approximately $54,000.
Total Expenses
According to the financial information provided by the seller,
adding the real estate tax liability, common area expenses,
and management fee, resulted in total expenses in 2001 of
$453,633, approximately $8.47 per square foot.
Capital improvements anticipated
The General Partner believes that the property has been fairly
well maintained, and observed some deferred maintenance items
of minor significance with the exception of the common areas,
which have been neglected. The physical incurable
depreciation generally refers to the normal aging that occurs
for the structural components.
Tenant improvements will be required to attract new tenants to
the building. This will be a substantial cost to the
Partnership over the lease-up period. The estimated amount
has yet to be determined.
Depreciation information.
Federal tax basis. In a Section 1031 Exchange, the basis in
the replacement property equals the value of the replacement
property less the amount of gain deferred in the exchange.
Exchange expenses, such as sales commissions, are treated as
money paid by the taxpayer and increase the basis of the
replacement property. The basis in the replacement property
is allocated between land and improvements in proportion to
its relative fair market value. The allocation of basis
between land and improvements of the relinquished property
(The Meadows II Apartments) is irrelevant for these purposes.
Rate. The applicable rate to be used for computing
depreciation for financial statement purposes is 2.5% per year
for the buildings and tenant's improvements, 6.67% for land
improvements, and 14.3% per year for personal property.
Method. The applicable depreciation method to be used for
computing depreciation for financial statement purposes is the
straight line method.
Life claimed. The life to be used to depreciate assets for
financial statement purposes is 40 years for buildings and
improvements, 15 years for land improvements, and seven years
for personal property.
Insurance
Based on information provided by the seller, insurance expense
ranged from $10,014 to $15,717 during 1999-2001. The initial
first year insurance expense will be approximately $10,000.
EXHIBIT 99.6
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
ANNEX PF-1
PRO FORMA CONDENSED BALANCE SHEET
JUNE 30, 2002
(UNAUDITED)
The foregoing unaudited Pro Forma Balance Sheet gives effect to
certain assumptions, including the purchase by the Partnership of
two office buildings (the Spectrum office building located in
Orlando, Florida and Plymouth Plaza located in Clearwater, Florida)
and the investment in Decade Mortgage Loan Partners, LLC, which
purchased the mortgage loan encumbering Spectrum and Plymouth
Plaza. The Pro Forma Balance Sheet gives effect to both
transactions as if they had occurred on January 1, 2002.
The pro forma information should be read in conjunction with the
historical financial information for the Partnership, but does not
purport to be indicative of the results which may be obtained in
the future or which would actually have been obtained had the
purchase occurred as of January 1, 2002. The pro forma
presentation shows the possible scope of the change in the
historical financial position caused by the transactions.
PRO FORMA ADJUSTMENTS
PURCHASE OF PURCHASE OF
HISTORICAL OFFICE BLDGS MORTGAGE PRO FORMA
Assets
Cash and
cash
equivalents $127,494 $633,461 $760,955
Tax Escrow
Deposit $500 $215,396 $215,896
Exchange
Escrow $6,701,092 $(219,344) $(6,481,748) $0
Prepaid
Expense
& other
Assets $106,506 $106,506
Investment
Properties
at cost $21,800,587 $10,334,965 $32,135,552
Less:
Accumulated
Depreciation$(7,123,278) $0 $(7,123,278)
Investment
in Decade
Mortgage
Loan Partners,
LLC $4,200,000 $4,200,000
Utility
Deposits $40,453 $40,453
Debt
Issue
Costs, Net
of
Amortization $285,257 $0 $302,372 $587,629
Total Assets $21,938,611 $10,331,017 $(1,345,915) $30,923,713
Liabilities and Partners' Capital
Liabilities
Accounts
Payable and
Accrued Taxes $497,080 $167,813 $664,893
Tenants'
security
deposits $79,129 $7,554 $86,683
Unearned
rent
collections $56,001 $7,897 $63,898
Distributions
Payable $130,269 $130,269
Accrued
interest
payable $17,490 $68,689 $(68,689) $17,490
Payables
to Affiliates $1,446,852 $1,446,852
Mortgage
Notes
Payable $18,611,986 $10,079,064 $(1,277,226) $27,413,824
Total
Liabilities $20,838,807 $10,331,017 $(1,345,915) $29,823,909
Partners' Capital
General
Partner $(17,890) $0 $(17,890)
Limited
Partners $1,117,694 $0 $1,117,694
Total
Partners'
Equity $1,099,804 $0 $0 $1,099,804
Total
Liabilities
and Partners'
Equity $21,938,611 $10,331,017 $(1,345,915) $30,923,713
See notes to Pro Forma Financial Statements
ANNEX PF2
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
PRO FORMA CONDENSED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 2001
(UNAUDITED)
The following unaudited Pro Forma Condensed Statements of
Operations, give effect to certain assumptions, including the
purchase by the Partnership of two office buildings, the Spectrum
office building located in Orlando, Florida and Plymouth Plaza
located in Clearwater, Florida, and the investment in Decade
Mortgage Loan Partners, LLC, which purchased the mortgage loan
encumbering Spectrum and Plymouth Plaza. The Pro Forma Condensed
Statements of Operations give effect to the transactions as if they
occurred at the beginning of the period presented (January 1,
2001).
The pro forma information should be read in conjunction with the
historical financial information for the Partnership, but does
not purport to be indicative of the results which may be obtained
in the future or which would actually have been obtained had the
Offer occurred as of January 1, 2001. The pro forma presentation
shows possible scope of the change in the historical results of
operations caused by the transaction.
PRO FORMA ADJUSTMENTS
PURCHASE PURCHASE
OF OF PLYMOUTH MORTGAGE
HISTORICAL SPECTRUM PLAZA INVESTMENT PROFORMA
Operating
Revenue $6,993,384 $2,318,105 $1,027,749 $10,339,238
Operating
Expenses $(3,788,429) $(866,798) $(453,633) $(5,108,860)
Net
Operating
Revenue $3,204,955 $1,451,307 $574,116 $5,230,378
Interest
Expense $(2,045,518) $(380,360) $(364,276) $(2,790,153)
Depreciation$(1,046,892) $(105,582 $(101,117) $(1,253,591)
Net
income
from
investment
property $112,545 $965,365 $108,723 $0 $1,186,633
Interest
income $126,393 $355,320 $126,393
Interest
on payables
to affiliates $(28,588) $(28,588)
Partnership
Management
Expense $(193,730 $(193,730)
Net income $16,620 $965,365 $108,723 $355,320 $1,090,708
Net income
attributable
to General
Partner $166 $9,654 $1,087 $3,553 $10,907
Net income
attributable
to Limited
Partners $16,454 $955,712 $107,636 $351,767 $1,079,801
$16,620 $965,365 $108,723 $355,320 $1,090,708
Weighted
average
LP Interests
outstanding 13398.40 13398.40 13398.40 13398.40 13398.40
Net income
per Limited
Partner
Interest $1.23 $71.33 $8.03 $26.25 $80.59
See Notes to Pro Forma Financial Statements
ANNEX PF3
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
PRO FORMA CONDENSED STATEMENT OF INCOME
FOR THE SIX MONTHS ENDED JUNE 30, 2002
(UNAUDITED)
The following unaudited Pro Forma Condensed Statements of
Operations, give effect to certain assumptions, including the
purchase by the Partnership of two office buildings, the Spectrum
office building located in Orlando, Florida and Plymouth Plaza
located in Clearwater, Florida, and the investment in Decade
Mortgage Loan Partners, LLC, which purchased the mortgage loan
encumbering Spectrum and Plymouth Plaza. The Pro Forma Condensed
Statements of Operations give effect to the transactions as if they
occurred at the beginning of the period presented (January 1,
2002).
The pro forma information should be read in conjunction with the
historical financial information for the Partnership, but does
not purport to be indicative of the results which may be obtained
in the future or which would actually have been obtained
had the Offer occurred as of January 1, 2002. The pro forma
presentation shows possible scope of the change in the
historical results of operations caused by the transaction.
PRO FORMA ADJUSTMENTS
PURCHASE PURCHASE OF
OF PLYMOUTH MORTGAGE
HISTORICAL SPECTRUM PLAZA INVESTMENT PROFORMA
Operating
Revenue $2,482,842 $1,119,979 $439,661 $4,042,482
Operating
Expenses $(1,743,430) $(327,263) $(178,083) $(2,248,776)
Net
Operating
Revenue $739,412 $792,716 $261,578 $1,793,706
Interest
Expense $(764,224) $(190,180) $(182,138) $(1,136,542)
Depreciation $(342,430) $(52,791) $(50,559) $(445,780)
Amortization $(126,386) $(126,386)
Net income
(loss) from
investment
property $(493,628) $549,745 $28,882 $0 $211,385
Interest
income $70,213 $177,660 $247,873
Partnership
Management
Expense $(178,600) $(178,600)
Gain on
Sale of
Property $8,579,120 $8,579,120
Net income $7,977,105 $549,745 $28,882 $177,660 $8,859,778
Net income
attributable
to General
Partner $79,771 $5,497 $289 $1,777 $87,334
Net income
per Limited
Partners $7,897,334 $544,248 $28,593 $175,883 $8,771,180
$7,977,105 $549,745 $28,882 $177,660 $8,858,514
Weighted
average LP
Interests
outstanding 12306.77 12306.77 12306.77 12306.77 12306.77
Net income
per Limited
Partner
Interest $641.71 $44.22 $2.32 $14.29 $712.71
See Notes to Pro Forma Financial Statements
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
Notes to the Pro Forma Financial Statements
June 30, 2002
Note 1. Basis of Presentation
The Unaudited Pro Forma Condensed Balance Sheet of the Partnership
as of June 30, 2002 (the Pro Forma Condensed Balance Sheet), and
the Unaudited Pro Forma Condensed Statements of Income for the year
ended December 31, 2001, and for the six-month period ended June
30, 2002 (the Pro Forma Condensed Statements of Operations) (the
Pro Forma Condensed Balance Sheet together with the Pro Forma
Condensed Statements of Income are hereinafter referred to as the
Pro Forma Financial Statements) have been prepared to illustrate
the estimated effect of (1) the purchase of the Properties on July
30, 2002, (2) the investment in Decade Mortgage Loan Partners, LLC
(DMLP) on August 27, 2002, which purchased the nonrecourse mortgage
loan that encumbered the Properties on August 29, 2002, and (3) the
use of cash funds to reduce the outstanding principal balance of
the mortgage loan upon its purchase by DMLP on August 29, 2002.
The Pro Forma Financial Statements do not reflect any anticipated
improvement in operating rental revenues or cost savings from the
acquisition of the Properties, or any synergies that are
anticipated to result from the acquisition of the Properties, and
there can be no assurance that any such improvement in operating
revenues, or cost savings, or synergies will occur.
The Pro Forma Condensed Statements of Income give pro forma effect
to the transactions as if they had occurred on January 1, 2001 and
January 1, 2002. The Pro Forma Condensed Balance Sheet gives pro
forma effect to the transactions as if they had occurred on June
30, 2002. The Pro Forma Financial Statements do not purport to be
indicative of the results of operations or financial position of
the Partnership that would have actually been obtained had such
transactions been completed as of the assumed dates and for the
periods presented, or which may be obtained in the future.
The pro forma adjustments are described in the notes herein and are
based upon available information and certain assumptions that the
Partnership believes are reasonable. The Pro Forma Financial
Statements should be read in conjunction with the separate
historical financial statements of the Partnership and the notes
thereto and Management's Discussion and Analysis or Plan of
Operation included in the Partnership's Annual Report on Form 10-
KSB for the year ended December 31, 2001, and the separate
historical financial statements of the Partnership and the notes
thereto and Management's Discussion and Analysis or Plan of
Operation included in the Partnership's Quarterly Report on Form
10-QSB for the quarterly period ended June 30, 2002.
A preliminary allocation of the purchase price has been made
between Spectrum and Plymouth in the accompanying Pro Forma
Financial Statements based on available information. A preliminary
allocation of the allocated purchase price for both Spectrum and
Plymouth has been made between land, buildings, and personal
property based on available information. The actual allocation of
purchase price and the resulting effect on income form operations
may differ significantly from the pro forma amounts included
herein. These pro forma adjustments represent the Partnership's
preliminary determination of accounting adjustments and allocations
and are based upon available information and certain assumptions
that the Partnership believes to be reasonable. Consequently, the
amounts reflected in the Pro Forma Financial Statements are subject
to change, and the final amounts may differ substantially.
Note 2. Summary of Transactions
Acquisition of New Partnership Property
On July 30, 2002, the Partnership purchased two office buildings
(buildings known as Spectrum, located in Maitland, Florida, and
Plymouth, located in Clearwater, Florida). Spectrum and Plymouth
are hereinafter collectively referred to as the Properties. The
properties were purchased subject to the nonrecourse mortgage loan
(the Note) that encumbered the Properties, without the consent of
the Lender.
The purchase price of the Properties was approximately $10.2
million, plus closing costs. The Properties were encumbered by a
first mortgage loan of approximately $10,079,000. At closing, the
Partnership gave cash consideration of $125,000 and purchased the
Properties subject to the mortgage.
The Partnership's source of the funds used in this transaction
consisted of cash proceeds held in the Exchange Escrow which were
provided by the sale of The Meadows II Apartments on January 31,
2002. The existing nonrecourse first mortgage loan of
approximately $10,079,000 encumbered the Properties. The
Partnership offered to pay down the existing loan to approximately
$8.8 million in exchange for certain lender concessions.
Subsequently, on August 29, 2002, the Partnership reduced the
outstanding principal balance of the Note by approximately $1.28
million (from $10.08 to approximately $8.80 million) as part of the
transfer of the Note to Decade Mortgage Loan Partners, LLC, a newly
created affiliated entity, as hereafter described.
The nonrecourse mortgage loan (the "Note") bears interest on the
outstanding principal balance from July 1, 1997 (the "Date of
Loan") through and including August 1, 2007 (the "Maturity Date")
at the fixed rate of 8.46% per annum. The Note provides for
monthly payments of principal and interest of $87,074.87. The
required loan payments amortize the principal balance over a 293-
month period (24 years, five months). There is a penalty for
prepayment of the loan amount that was approximately $2.1 million
at the date of closing. The note provided for prepayment in full,
but not in part, on the first day of any calendar month, upon 90
days prior notice to Lender and upon payment in full of all amounts
payable under the loan documents (which will include a prepayment
penalty). The prepayment penalty will consist of the greater of
(1) 2% of the outstanding loan principal balance and (2) an amount
computed under a yield maintenance formula defined in the Note.
The Partnership requested Lender approval prior to closing but was
unable to obtain it due to the Lender's time constraints. The
Lender however did indicate a willingness to work with the
Partnership or its affiliates to achieve a satisfactory result.
Those negotiations resulted in the sale of the Note on August 29,
2002 by the Lender to Decade Mortgage Loan Partners, LLC (DMLP), a
newly formed Wisconsin limited liability company that was created
to purchase the nonrecourse mortgage note (the Note) that
encumbered the Properties. The Partnership is a member DMLP, along
with other affiliated entities, as hereafter described.
In connection with its acquisition of the Properties, the
Partnership incurred a real estate commission payable to an
unaffiliated broker in the amount of $150,000.
Investment in Decade Mortgage Loan Partners LLC (DMLP)
Prior to its purchase of the Properties, the Partnership requested
Lender approval but was unable to obtain it due to the Lender's
time constraints. The Lender however did indicate a willingness to
work with the Partnership or its affiliates to achieve a
satisfactory result. Those negotiations resulted in the sale of
the Note on August 29, 2002 by the Lender to Decade Mortgage Loan
Partners, LLC (DMLP), a newly formed Wisconsin limited liability
company that was created to purchase the Note. The Partnership is
a member of DMLP, along with other affiliated entities.
The outstanding principal balance of the Note was approximately
$10,079,000 as of closing on July 30, 2002. For income tax
considerations related to preserving the benefits of the Section
1031 Exchange to the extent possible, the Partnership needed to
reduce the balance of the Note from approximately $10.1 million to
approximately $8.8 million, which amount is equal to the balance of
the mortgage liability of The Meadows II Apartments, which was sold
on January 31, 2002. Accordingly, the Partnership earmarked
approximately $1.3 million to be paid down on the mortgage. This
amount was committed to the Lender on July 22, 2002, Therefore, the
new limited liability company needed approximately $8.8 million of
capital to provide the funds necessary to purchase the Note from
the Lender.
On August 27, 2002, the Partnership used cash reserves of $4.2
million to purchase 4,200 Units (the DMLP Units) (approximately
47.7% of the 8,805 DMLP Units issued and outstanding) of DMLP.
The Partnership's source of the funds used in this transaction
consisted of cash reserves held by the Partnership which were
obtained from the Exchange Escrow which had held the proceeds from
the sale of The Meadows II Apartments on January 31, 2002.
Purchase of Note by DMLP
On August 29, 2002, DMLP purchased the Note for $8,801,838 from the
Teachers Insurance and Annuity Association of America (TIAA). In
conjunction with the transfer of the Note from TIAA to DMLP, the
Partnership paid TIAA approximately $1,726,000 to (1) reduce the
outstanding principal balance of the Note by $1,277,226 (from
$10,079,064 to $8,801,838), (2) pay a prepayment penalty of
$302,372 (the Prepayment Premium) computed at 3% of the outstanding
principal balance of the Note payable to TIAA, (3) pay accrued
interest of $139,746 (the Interest Payment), and (4) pay a late fee
of $4,354 (the Late Fee) computed at five cents for each dollar (5%
of $87,074.87) of delinquent payment payable to TIAA. The Late Fee
was subsequently reimbursed to the Partnership by the Seller of
Spectrum and Plymouth. The Interest Payment included $68,689 of
prorated interest for July which was received by the Partnership as
a closing credit from the Seller.
The Note bears interest on the outstanding principal balance from
July 1, 1997 (the Date of Loan) through and including the Maturity
Date at a fixed rate of 8.46% per annum. The Note provided for
monthly payments of principal and interest of $87,074.87. DMLP
modified the terms of the Note to require payments of interest only
until October 1, 2002, and then monthly payments of principal and
interest of $70,637.68 beginning on November 1, 2002. The revised
required loan payments amortize the principal balance over a 25-
year period. There was a penalty for prepayment of the loan amount
that was computed to be approximately $2.1 million as of the July
30 closing date. The Note may be prepaid in full, but not in part,
on the first day of any calendar month, upon 90 days prior notice
to Lender and upon payment in full of all amounts payable under the
loan documents (which would include a prepayment penalty). The
Prepayment Premium consists of the greater of (1) 2% of the
outstanding loan principal balance and (2) an amount computed under
a yield maintenance formula defined in the Note.
In consideration for the Partnership's payment of the Prepayment
Premium, DMLP will modify certain terms of the Note to permit the
Partnership to prepay the Note in whole or in part and to release
collateral upon the sale of either Spectrum or Plymouth. In
addition, DMLP will modify the yield maintenance formula under
certain conditions for the benefit of the Partnership.
DMLP's source of the funds used in this transaction consisted of
cash generated from the sale of the DMLP Units on August 27, 2002.
Note 3. Notes to the Pro Forma Condensed Balance Sheet at June 30,
2002
(a) The Pro Forma Condensed Balance Sheet at June 30, 2002 assumes
that (1) the purchase of the Properties on July 30, 2002, (2) the
investment in Decade Mortgage Loan Partners, LLC (DMLP) on August
27, 2002, which purchased the nonrecourse mortgage loan that
encumbered the Properties on August 29, 2002, and (3) the use of
cash funds to reduce the outstanding principal balance of the
mortgage loan upon its purchase by DMLP on August 29, 2002,
occurred on June 30, 2002. For purposes of the Pro Forma Condensed
Balance Sheet as of June 30, 2002, these transactions were combined
with the Partnership's historical Condensed Balance Sheet as of
June 30, 2002.
(b) The capitalized cost of approximately $10.3 million for the
Properties consisted of the adjusted purchase price of $10.175
million plus closing costs incurred.
(c) The Properties were purchased subject to the existing
nonrecourse mortgage debt of approximately $10.1 million. The
Exchange Escrow provided additional funds required to close the
transaction. Closing credits were received for certain liabilities
assumed for accrued real estate and tangible property taxes,
interest payable for July, prepaid rent collections, and security
deposits. A closing credit was given to the seller for the tax
deposit escrow held by the mortgage lender of approximately
$215,000.
(d) The balance of the Exchange Escrow of approximately $6.5
million was used to invest $4.2 million in DMLP, to reduce the
outstanding mortgage principal balance by approximately $1.3
million, to pay deferred financing costs of approximately $302,000,
and to increase cash reserves.
Note 4. Notes to the Pro Forma Condensed Statements of Income
(a) The Pro Forma Condensed Statements of Operations assumes that
(1) the purchase of the Properties on July 30, 2002, (2) the
investment in Decade Mortgage Loan Partners, LLC (DMLP) on August
27, 2002, which purchased the nonrecourse mortgage loan that
encumbered the Properties on August 29, 2002, and (3) the use of
cash funds to reduce the outstanding principal balance of the
mortgage loan upon its purchase by DMLP on August 29, 2002,
occurred on January 1, 2001, or January 1, 2002. For purposes of
the Pro Forma Condensed Statement of Operations for the year ended
December 31, 2001, Spectrum's historical Statement of Operating
Income and Certain Expenses for the year ended December 31, 2001,
and Plymouth's historical Statement of Operating Income and Certain
Expenses for the year ended December 31, 2001, were combined with
the Partnership's historical Statement of Operations for the year
ended December 31, 2001. For purposes of the Pro Forma Condensed
Statement of Operations for the six-month period ended June 30,
2002, Spectrum's historical Statement of Operating Income and
Certain Expenses for the six-month period ended June 30, 2002, and
Plymouth's historical Statement of Operating Income and Certain
Expenses for the six-month period ended June 30, 2002, were
combined with the Partnership's historical Statement of Operations
for the six-month period ended June 30, 2002.
(b) The total purchase price of the Properties was allocated
between Spectrum and Plymouth based upon the allocation set forth
in the Offer to Purchase, whereby Spectrum was allocated 51.08% of
the purchase price and Plymouth was allocated 48.92% of the
purchase price. The resulting allocated purchase price for both
Spectrum and Plymouth was allocated between land and buildings
based upon their respective estimated fair values of 20% to land
and 80% to buildings as of the July 30, 2002 closing date. The
actual allocation of purchase price and the resulting effect on
income from operations may differ significantly from the pro forma
amounts included herein.
The adjustments for estimated pro forma depreciation are based on
their estimated fair values. The buildings are being depreciated
over estimated useful lives. Upon consummation of the purchase of
the Properties, the fair value of the Spectrum assets acquired was
estimated to be approximately $5,279,000, with $4,223,000 allocated
to the building. Upon consummation of the purchase of the
Properties, the fair value of the Plymouth assets acquired was
estimated to be approximately $5,056,000, with $4,045,000 allocated
to the building and parking garage. These amounts are being
depreciated over 40 years for the buildings and tenants'
improvements, consistent with the Partnership's depreciation policy
for real property and the Partnership's estimate of the remaining
economic life of the assets (approximately $207,000 of annual
depreciation expense consisting of $106,000 for Spectrum and
$101,000 for Plymouth).
(c) Adjustments for additional interest expense assumes that (1)
the purchase of the Properties on July 30, 2002, and (2) the use of
cash funds to reduce the outstanding principal balance of the
mortgage loan upon its purchase by DMLP on August 29, 2002,
occurred on January 1, 2001 or January 1, 2002. The change in
interest expense, in addition to amortization of deferred financing
costs, reflects the change in long term borrowings and their rates
based on a fixed interest rate of 8.46% on the related mortgage
debt of approximately $8.8 million (approximately $745,000 of
annual interest expense consisting of $381,000 for Spectrum and
$364,000 for Plymouth). The change in amortization of deferred
financing costs reflects the change in deferred financing costs of
approximately $302,000 amortized over the remaining 59-month period
(from August 29, 2002 to the August 1, 2007 maturity date) of the
mortgage debt (approximately $61,000 of annual amortization expense
consisting of $31,000 for Spectrum and $30,000 for Plymouth).
(d) Adjustments for additional interest income assumes that (1)
the investment in Decade Mortgage Loan Partners, LLC (DMLP) on
August 27, 2002, which purchased the nonrecourse mortgage loan that
encumbered the Properties on August 29, 2002, and (2) the use of
cash funds to reduce the outstanding principal balance of the
mortgage loan upon its purchase by DMLP on August 29, 2002,
occurred on January 1, 2001 or January 1, 2002. The change in
interest income reflects the investment of $4.2 million in DMLP and
its expected earnings rate based on a fixed interest rate of 8.46%
on the related mortgage debt of approximately $8.8 million
(approximately $355,000 of annual interest income).
EXHIBIT 10.39
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made and entered into as
of 12 June, 2002, by and between ABR SPECTRUM, LTD. AND ABR
PLYMOUTH PLAZA, LTD., both Florida limited partnerships
(hereinafter collectively referred to as "Seller") and DECADE
PROPERTIES, INC., a Wisconsin corporation, or its assigns
("Purchaser").
RECITALS
A. Seller is the owner of that certain real property
together with the buildings, improvements, and other appurtenances
located thereon, and all tangible and intangible personal property
related thereto situated in Pinellas and Orange Counties, Florida,
which are legally described on Exhibits "A" and "A-1" attached
hereto and incorporated herein by this reference and further
described below (collectively, the "Property"). The Premises
described on Exhibit A shall sometimes hereafter be referred to as
the "Spectrum Property"; those described on Exhibit A-1 shall
sometimes hereafter be referred to as the "Plymouth Plaza
Property."
B. Seller desires to sell to Purchaser, and Purchaser
desires to purchase the Property, on the following terms and
conditions.
AGREEMENTS
In consideration of the mutual promises and covenants herein
contained, the sum of Ten and No/100th Dollars ($10.00), and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. For purpose of this Agreement, the terms
underlined in this Section 1 shall have the meaning set forth next
to the underlined term.
1.1 Building. All buildings located within the projects known
as Spectrum and Plymouth Plaza, and located on the
premises described on Exhibits A and A-1, together with
all related improvements on, in, or under the Real
Property, including without limitation all affixed tenant
improvements.
1.2 Closing Date. The Closing Date, as described below,
shall occur on or before forty-five (45) days after the
Effective Date, or such earlier date as Purchaser and
Seller may agree upon in writing. Closing shall mean the
consummation of this Agreement by the recording of all
instruments requiring recording, the rendering of all
performances necessary to the consummation of the
purchase and sale contemplated hereby, and delivery of
other documents and proceeds to the parties entitled
thereto.
1.3 Contracts. Seller's contract rights and general
intangibles, agreements, licenses, service, maintenance,
utility, and operating contracts and warranties,
including without limitation agreements for construction
of any improvements on the Property and rights under any
payment, performance, or other bonds, as further
described herein.
1.4 Earnest Money. Purchaser's earnest money deposits in the
aggregate sum of TWO HUNDRED THOUSAND AND 00/100
($200,000.00) DOLLARS, due and payable at such times
described in Paragraph 2 below.
1.5 Effective Date. The Effective Date of this Agreement
shall be the date on which it is executed by the last of
the parties hereto to affix their signatures herein.
1.6 Escrow Agent. Quarles & Brady LLP, the Seller's
attorney, or such other person or entity approved by both
Seller and Purchaser and authorized by law to perform
escrow services in the state in which the Property is
located. The Escrow Agent's office is located at: 4501
Tamiami Trail North, Suite 300, Naples, Florida 34103.
1.7 Escrow. The Escrow opened by Seller and Purchaser with
the Escrow Agent for the accomplishment of the Closing.
1.8 Exhibits. The following documents, whether or not
physically affixed to this Agreement, are deemed
incorporated in this Agreement, as are any and all
document and written materials specifically listed or
referred to in such documents:
Exhibit A: Legal Description of Real Property
Exhibit B: Hazardous Substances Certificate
Exhibit C: Permitted Exceptions
1.9 Governmental Requirements. All buildings, zoning,
subdivision, traffic, land use, environmental, occupancy,
health, fire, safety, wetlands, or other applicable laws,
ordinances, regulations, decrees, or rules of any
federal, state, county, municipal, or other governmental
or quasi-governmental authority or agency pertaining to
the Property.
1.10 Inspection Period. The period of time expiring at
5:00 p.m. E.S.T. thirty (30) days after the Effective
Date in which Purchaser has to perform its Property due
diligence.
1.11 Intangible Personal Property. All of Seller's right,
title, and interest in any and all intangible property
related to the development, use, or occupancy of the
Property, including without limitation any and all
Contracts, Permits, Plans, Leases, and Trademarks.
1.12 Leases. All of Seller's right, title, and interest as
landlord in and under any and all leases or rental
agreements affecting the Property, whether recorded or
unrecorded, which extend beyond the Closing Date and any
and all guaranties thereof.
1.13 Money Liens. Mortgages, deeds of trust, statutory liens,
and any and all other liens or encumbrances on the
Property which may be removed or released by the payment
of a specific liquidated or ascertainable sum of money.
1.14 Permits. Any and all governmental licenses, permits,
approvals, and consents, including without limitation
environmental clearances, authority to subdivide the
Property, and all rights, licenses, and permits necessary
for the use, occupancy, and disposition of the Property,
as further described herein.
1.15 Plans. Any and all surveys, plans, specifications,
engineering studies, drawings, prints, soils studies,
grading and drainage studies, and similar studies and
reports in Seller's possession or to which Seller has
access, as further described herein.
1.16 Property. The Real Property, Tangible Personal Property,
and Intangible Personal Property.
1.17 Real Property. The Real Property legally described in
Exhibit A, attached hereto and incorporated herein by
this reference. The term "Real Property," unless the
context otherwise requires, shall include the Building
and the associated grounds and improvements comprising
the Real Property. It shall also include, unless the
context otherwise requires, any and all minerals, oil,
gas, hydrocarbon substances, development rights, air
rights, water rights, and water stock owned by Seller
relating to the Real Property; easements and rights of
way, strips, and gores; and any and all right, title, and
interest of Seller, if any, in and to any award or
payment made or to be made for (i) any taking in
condemnation or eminent domain of all or any part of the
aforesaid and (ii) any damage to or destruction of all or
any part of the improvements.
1.18 Survey. The as-built survey of the Real Property
prepared by a land surveyor or professional engineer
licensed under the laws of the state in which the
property is located, and prepared in conformity with the
laws and/or regulations of that state, and meeting the
following requirements: The Survey shall (a) set forth
the legal description of the Real Property identical to
that which appears in Exhibit A; (b) establish the
boundaries of the Real Property; (c) certify the gross
area of the Real Property; (d) locate the Building and
the other improvements on the Real Property; (e) locate
all title exceptions capable of physical location; (f)
locate any and all means of ingress and egress; (g)
locate encroachments, overlaps, or other matters which
may give rise to prospective adverse possession claims;
and (h) otherwise satisfy the requirements for the
issuance of the Title Insurance. Defects disclosed by
the Survey (including without limitation gaps, gores, or
overlaps, encroachments beyond lot or setback lines, and
lot coverage violations) shall be deemed title defects
within the meaning of this Agreement.
1.19 Tangible Personal Property. Any and all apparatus,
equipment, appliances, systems, tools, machinery,
furniture, or furnishings of any kind used in the
operation or occupancy of the Building or the Real
Property, and any and all goods, supplies, materials, or
components located on the Real Property or used in the
operation or occupancy of the Building, including without
limitation heating and incinerating apparatus and
equipment, boilers, engines, motors, dynamos, generating
sprinkling and vacuum cleaning system, fire extinguishing
apparatus, gas and electric fixtures, carpeting, under-
padding, elevators, escalators, partitions, mantels,
built-in mirrors, window shades, blinds, screens, storm
sash, awnings, furniture, shrubbery, plants, ranges,
cooking apparatus, and mechanical kitchen equipment.
1.20 Title Insurance. The ALTA FORM B title insurance policy
in the amount of the Purchase Price to be issued to
Purchaser by Seller's attorneys, Quarles & Brady LLP,
insuring that Purchaser's title to the Real Property is
in the condition required hereunder, together with
endorsements as Purchaser may require.
1.21 Title Report. A preliminary commitment for the Title
Insurance.
1.22 Trademarks. Seller's right, title, and interest in and
to any and all trademarks, trade names, and names by
which the Building and Property may at any time be known
or operated and any variant thereof in any way relating
to the Property.
2. Purchase and Sale
2.1 Agreement to Purchase and Sell. Seller shall sell, and
Purchaser shall purchase, the Property for the price of
TEN MILLION FOUR HUNDRED THOUSAND AND 00/100
($10,400,000.00) DOLLARS on the terms and conditions set
forth herein.
2.2 Payment of Purchase Price. The Purchase Price shall be
payable as follows:
Purchase Price: $10,400,000.00 (U.S.)
(a) initial Earnest Money deposit in
escrow of even date herewith: $100,000.00
(b) additional deposit to be received
in escrow on or before the
expiration of the Inspection
Period in the amount of $100,000.00
(c) existing mortgage, subject to
normal amortization, of approximately
[See Paragraph 2.3]: $10,096,515.00
(d) the balance of the purchase price,
by cash, local certified check, wire
transfer funds or local cashier's check
at Closing, subject to adjustments and
prorations, of approximately: $103,485.00
Deposit checks are accepted subject to collection.
2.3 Existing Mortgage. Seller has disclosed to Purchaser
that the Property is encumbered by a mortgage and
collateral loan documents held by Teachers Insurance and
Annuity Association of America ("Teachers"). Purchaser
shall make application to take title to the Property
subject to said existing loan documents and to release
Seller and its principals therefrom, as soon as possible
after the Effective Date, and shall diligently prosecute
obtaining approval of said application. Purchaser
acknowledges that Purchaser shall cause Teachers to
release to Seller, a letter of credited in the amount of
$500,000 that Seller pledged to Teachers as additional
collateral for said loan. Purchaser shall be responsible
for all recording taxes and costs; and, further all costs
and expenses charged by Teachers not to exceed $5,000.
In the event that Purchaser elects to purchase the
Property, but not subject to the liabilities represented
by Teachers' mortgage and related loan documents,
Purchaser shall be responsible for all pre-payment
penalties and expenses charged by Teachers incident to
the satisfaction of said loan obligation.
2.4 Allocation of Purchase Price. The parties agree that the
allocation of the Purchase Price between the Real
Property and the Building, the Tangible Personal
Property, and the Intangible Personal Property shall be
as the parties reasonably agree during the Inspection
Period.
3. Title and Conveyances
3.1 Title Report. The Seller shall deliver the Title Report
to the Purchaser within ten (10) days of the Effective
Date. Within the Inspection Period, Purchaser shall
notify Seller in writing of those exceptions which are
(a) wholly acceptable, (b) conditionally acceptable, and
(c) wholly unacceptable. Prior to Closing Seller shall
be obliged to clear any disapproved exceptions. No later
than seven (7) days after the Inspection :Period, Seller
shall notify Purchaser whether it will be able to clear
disapproved exceptions other than Money Liens or comply
with the conditionally approved exceptions which are not
Money Liens. If Seller notifies Purchaser that Seller
cannot clear the exceptions or comply with Purchaser's
conditions, such notification shall be deemed a failure
of a condition precedent to Closing, entitling Purchaser
to withdraw immediately from and terminate this Agreement
as hereinafter provided, and to receive a refund of
Purchaser's Earnest Money.
3.2 Title. Seller's title to the Real Property shall be
conveyed by Special Warranty deed on Closing and shall be
in fee simple, free and clear of any and all liens,
encumbrances, easements, restrictions, encroachments,
rights of way, reservations, limitations, and other
defects whatsoever; subject to those items set forth on
Exhibit C attached hereto, and any exceptions approved by
Purchaser pursuant to Section 3.1 herein. Seller shall,
throughout the term of this Agreement, keep the Property
free of encumbrances, except those described in the Title
Report, unless Seller has first received the prior
written consent of Purchaser, which consent shall not be
unreasonably withheld. Seller may discharge and pay any
disapproved Money Liens out of the Purchaser Price.
3.3 Survey. Purchaser may, at Purchaser's expense, elect to
obtain a Survey of the Real Property. If the Survey
reveals (a) an encroachment onto the Property; (b) an
improvement located on the Property project onto lands of
others; (c) an improvement violates a zoning or other
governmental use restriction; or (d) an improvement which
violates any recorded covenant, Purchaser will notify the
Seller in writing prior to Closing Date of the violation,
encroachment or projection and Seller shall treat it, and
cure it, as a title defect.
4. Agreements Pending Closing
4.1 Due Diligence. Purchaser is granted an Inspection Period
as defined below to determine whether to proceed to
Closing.
4.1.1 Entry and Examination. Purchaser and its engineers,
architects, appraisers, and other agents shall have until
thirty (30) days after the Effective Date (the
"Inspection Period"), commencing with the Effective Date
of the Agreement, within which to undertake such physical
inspections and other investigations of and inquiries
concerning the subject premises as may be necessary in
order for Purchaser to evaluate the physical
characteristics of the Property, as well as such other
matters as may be deemed by Purchaser to be necessary
generally to evaluate the subject premises and determine
the feasibility and advisability of Purchaser's purchase
of the same. Seller expressly authorizes Purchaser and
its agents to enter the Property to perform all of the
said inspections. If, prior to the expiration of said
Inspection Period, Purchaser advises Seller in writing
that Purchaser does not wish to proceed with the purchase
of the Property for any reason or no reason, than this
Agreement shall be deemed rescinded. In that event, the
Escrow Agent shall return all but one hundred ($100.00)
dollars of Purchaser's Earnest Money deposit, and any
accrued interest thereon to the Purchaser, and both
Purchaser and Seller shall be relieved of all further
obligations or liabilities under the terms of this
Agreement; otherwise, Purchaser shall be bound to perform
hereunder.
If the Purchaser enters the Property and makes any
excavations or tests, Purchaser shall restore the
Property to its original state, and shall protect the
Property against the filing of any construction liens for
work performed on behalf of the Purchaser. The Purchaser
further agrees to hold the Seller harmless and indemnify
Seller from any loss it may suffer as the result of these
inspection activities (provided that none of said loss is
due to the intentional acts or negligence of Seller).
4.1.2 Seller Due Diligence Assistance. Seller shall
deliver to Purchaser no later than five (5) days from the
Effective Date of the Agreement, each and every one of
the following items for Purchaser's review and use:
(a) Copies of all leases now in effect, and any guarantees or
security therefor, and any amendments or modifications
together with copies of all notices.
(b) Statement of operating expenses for the period of January
1, 1999 through the most current date available.
(c) Copy of most recent survey of the Property.
(d) Copy of 2001 real estate and personal property ad valorem
tax assessments for the Property, and any and all other
tax assessments from any and all other governmental
units.
(e) Copy of all service, labor management, or employment,
contracts now in effect relating to the Property's
operation plus a copy of the hazard and liability
insurance contracts presently in place.
(f) Copy of the most recent environmental report for the
Property.
(g) Current rent roll and security deposit list for all
tenants certified by Seller as being true, correct and
complete.
(h) Any and all appraisals of the Project in Seller's
possession.
(i) Leasing Commission Agreements.
(j) A list of all current employees and their respective
salaries.
(k) A copy of any existing mortgage, promissory note,
assignment of leases and rents, and any other documents
evidencing any loan obligation secured by a lien on the
Property.
(l) A copy of any notices that any governmental entity may
have delivered to Seller contemplating any condemnation
or any eminent domain proceedings against all or any
portion of the Property.
(m) Any engineering reports in Seller's possession pertaining
to the Property, or any portion thereof.
(n) All currently existing plans in Seller's possession or
control, of the Building and other improvements, and all
existing reports in Seller's possession or control or to
which Seller has access relating to the soil,
seismological, geological, and drainage conditions and
flood and wind characteristics of the Property.
(o) The Permits in Seller's possession, including without
limitation all existing environmental assessment or
impact reports in Seller's possession or control or to
which Seller has access relating to the Property, and all
approvals, conditions, orders, or declarations issued by
any governmental authority relating thereto, including
copies of any certificates of occupancy which are in
Seller's possession.
(p) The Contracts, including without limitation any and all
warranties given to Seller in writing in connection with
the construction of the Building or other improvements or
the purchase of any of the Tangible Personal Property.
(q) Any other documentation that Purchaser may reasonably
request.
The Seller shall make a reasonable effort to provide
Purchaser with such other information as the Purchaser
may reasonably request, available for inspection and
duplication by the Purchaser upon reasonable notice of
the Seller, at no cost to the Seller.
4.2 Management. Seller shall use its best efforts to
administer and manage the Property so as to fulfill the
conditions to Closing specified herein, such that Closing
may occur on the Closing Date.
4.3 Transfer or Bad-Faith Encumbrance. Seller shall not
sell, nor dispose of any of the Property, nor cause or
suffer the creation of any new exception to the Title
Report, without Purchaser's prior written consent, which
consent shall not be unreasonably withheld.
4.4 Leasing. Seller has advised Purchaser that the lease of
the major tenant at the Spectrum Property (Paysys) is due
to expire on June 30, 2002, and that Paysys will not be
renewing the same. Seller intends on marketing both the
Plymouth Plaza Property, and Spectrum Property, for lease
consistent with its past practices. Prior to the
expiration of the Inspection Period, Seller shall have
the right to enter into leases with third parties without
Purchaser's consent; provided, however, Seller shall
delivery a copy of all such leases to Purchaser the
earlier of within one (1) business day of the lease being
executed or seven (7) business days before the expiration
of the Inspection Period. Following the expiration of
the Inspection Period, Seller shall not have the right to
execute any leases for any portion of the Property
without Purchaser's consent. The parties agree that
Purchaser shall be responsible for all real estate
commissions due any broker incident to the execution of
new leases, or the renewal of existing leases executed or
renewed after the Effective Date; provided, however,
Purchaser shall only be obligated to pay a real estate
commission on the renewal of existing leases if the
commission is due and payable as a result of an agreement
consummated at the time of the execution of said lease;
and further provided, Purchaser shall have no obligation
to pay a real estate commission to Seller, Reed
Development Company, or any affiliate thereof, incident
to the renewal of any lease. Purchaser shall also be
responsible for all reasonable tenant improvement
allowances incurred incident to the execution of any
lease, or any lease renewals. All expenses incurred
shall be consistent with Seller's past leasing practices
in a soft real estate market. Purchaser agrees to hold
Seller harmless, and indemnify Seller, for all costs and
expenses for which Purchaser is responsible under this
Paragraph 4.4.
4.5 Delivery of Inventories. Within ten (10) days of the
Effective Date, Seller shall deliver to Purchaser an
inventory of the Tangible Personal Property. The
inventory of Tangible Personal Property shall be attached
to the Bill of Sale, if any, to be delivered on the
Closing Date.
4.6 Operations. From the date of this Agreement to the
Closing Date, Seller shall operate the Property
diligently and in the ordinary course of its business so
as to preserve the Property and the business
relationships developed by Seller with respect to the
Property and maintain the Property in good condition and
repair.
5. Representations and Warranties of Seller. As additional
consideration for this sale, Seller represents, warrants, and
covenants as follows:
5.1 Warranty of Accuracy of Information. To Seller's
knowledge, no fact or reason exists why Purchaser may not
rely upon the completeness and accuracy in all material
respects of the documents, instruments, records, and
information furnished by Seller to Purchaser, including
without limitation the information required to be
delivered pursuant to this Agreement. Seller makes no
representations or warranties as to the completeness or
accuracy of financial statements provided by tenants.
5.2 Litigation. Seller has received no notice of and, to
Seller' knowledge, there is not pending or threatened any
litigation, condemnation, or other proceeding affecting
the Property or any portion thereof, which will prevent
Purchaser from continuing the present uses of the
Property or any portion thereof.
5.3 Authorization. Seller has the full power and authority
to enter into and execute this Agreement and all
agreements and documents contemplated hereby, to make the
representations and warranties set forth herein, and to
perform the covenants and obligations of Seller to be
performed hereunder. The execution and delivery of this
Agreement and performance by Seller of Seller's
obligations hereunder have been duly authorized, and no
further action or approval is required to cause this
Agreement to be binding, valid, and enforceable against
Seller in accordance with its terms. No action by any
federal, state, municipal, or other governmental
department, commission, board, bureau, or instrumentality
is necessary to make this Agreement valid instrument,
binding upon Seller in accordance with its terms. Seller
agrees to provide on or before Closing such documents as
are reasonably requested by Purchaser to evidence
Seller's authority hereunder. Neither the execution of
this Agreement nor its performance by Seller will
conflict with or result in the breach of any mortgage,
encumbrance, instrument, restriction covenant, agreement,
or other undertaking whatsoever.
5.4 Hazardous Waste. To Seller's knowledge, the Property has
never been used for the production, storage, deposit, or
disposal of toxic, dangerous, or hazardous substances,
pollutants, or contaminants in contravention of
applicable law.
5.5 Contracts Affecting the Property. The Contracts
submitted or to be submitted by Seller to Purchaser
hereunder, when submitted, constitute all Contracts to
which Seller or its agents or representatives are a party
which affect the Property. Each such Contract is in full
force and effect and has not been assigned, pledged,
hypothecated, mortgaged, or otherwise transferred, in
whole or in part, by Seller or, to Seller's knowledge, by
any other party thereto, nor is the consent of any person
required for the valid and effective assignment to
Purchaser of Seller's interest thereunder. There exist
no actual, claimed, or threatened defaults, nor any
actual, claimed, or threatened events which, with the
passage of time, the giving of notice, or both, will
constitute a default under any Contract with respect to
the performance of any of the terms, covenants, or
conditions to be performed by either party thereunder,
and there exist no actual, claimed, or threatened claims,
defenses, or rights of setoff by any party against the
other thereunder. All amounts due and payable under the
Contract will be paid in full through the Closing Date in
accordance with the terms of such Contracts.
5.6 Taxes. Seller has paid all taxes, assessments, and other
governmental charges, including without limitation
business, occupation, and local taxes imposed by law upon
the Property or upon Seller which are due and payable and
which, if unpaid, could result in a lien upon the
Property or any portion or part thereof, or prevent any
deed or other document required to be delivered hereunder
from being delivered, recorded, or accepted for recording
by the applicable public officials. There are no pending
or contemplated proceedings for the review or adjustment
of the real estate tax assessment of the Property other
than those which may result from the transfer
contemplated by this Agreement, to Seller's knowledge.
5.7 Brokerage Fees. Seller has incurred no finder's,
broker's, or other commission or fees payable to any
person in connection with the sale of the Property.
5.8 Effectiveness of Representations and Warranties. Unless
the context otherwise requires, or unless otherwise
agreed to in writing by Purchaser, the representations
and warranties of Seller set forth herein will and shall
be true and correct on the date of this Agreement and on
the Closing Date, and shall survive Closing and shall not
be merged in the deed or other Closing documents.
6. Representations and Warranties of Purchaser. As additional
consideration for this purchase, Purchaser represents,
warrants and covenants as follows:
6.1 Authorization. Purchaser has the full power and
authority to enter into and execute this agreement and
all agreements and documents contemplated hereby to make
the representation and warranties set forth herein, and
to perform the covenants and obligations of Purchaser to
be performed hereunder. The execution and delivery of
this Agreement and performance by Purchaser of
Purchaser's obligations hereunder have been duly
authorized, and no further action or approval is required
to cause this Agreement to be binding, valid, and
enforceable against Purchaser in accordance with its
terms. No action by any federal, state, municipal, or
other governmental department, commission, board, bureau,
or instrumentality is necessary to make this Agreement a
valid instrument, binding upon Purchaser in accordance
with its terms. Purchaser agrees to provide on or before
Closing such documents as are reasonably requested by
Purchaser to evidence Purchaser's authority hereunder.
6.2 Brokerage Fees. Purchaser has incurred no finder's,
broker's, or other commission or fees payable to any
person in connection with the purchase of the Property
other than to Collier's Arnold, who is entitled to
receive a commission for services rendered with respect
to the sale of the Property. Said commission shall be
paid at Closing as an expense of the Purchaser.
6.3 Effectiveness of Representations and Warranties. Unless
the context otherwise requires, or unless otherwise
agreed in writing by Seller, the representations and
warranties of Purchaser set forth herein will and shall
be true and correct on the date of this Agreement and on
the Closing Date and shall survive Closing and shall not
be merged in the deed or other Closing documents.
7. Conditions to Closing
7.1 Due Performance. Due performance of the terms,
conditions, and agreements of this Agreement to be
performed by a party and the accuracy of the
representations and warranties of each as of the Closing
Date is a condition to Closing by the other party. Such
performance shall include without limitation execution
and delivery in proper form of all of the documents
required hereunder to be delivered on the Closing Date
and the rendering of all other performances and
undertakings contemplated hereunder. In addition to this
mutual condition, the conditions set forth below in this
Section are conditions precedent to Purchaser's
performance, are inserted for the sole benefit of
Purchaser, and may be waived only in writing by
Purchaser.
7.2 Title Insurance. A marked up title insurance commitment
shall be delivered on the date of closing, without
standard exceptions (except real estate taxes for the
current year), insuring as of closing Purchaser's fee
simple title to the Real Property free and clear of all
liens and encumbrances, except the mortgage loan
documents held by Teachers, tenants under written leases,
those items set forth on Exhibit C attached hereto, and
the exceptions disclosed in the title commitment
delivered pursuant to Section 3.1 above not objected to
by Purchaser. The Seller shall discharge at or prior to
the closing any and all other mortgages, liens or
encumbrances which affect the Project. The final owners
title policy shall be delivered to Purchaser no later
than thirty (30) days after Closing.
7.3 Condition of Property. Subject to the provisions of
Section 8 herein, the Property and any portion thereof
shall not have been destroyed or damaged by fire or other
casualty, nor shall all or any portion of the Property be
condemned, the subject of a condemnation proceeding, or
threatened with condemnation.
7.4 Material Adverse Change. Subject to the provisions of
Section 8 herein, Purchaser shall have determined that
there has been no material adverse change in the
condition or operation of the Property from that
condition or operation represented to Purchaser.
8. Casualty and Condemnation
8.1 Destruction and Condemnation. In the event of the
complete or partial destruction or total or partial
condemnation of the Building or the complete or partial
destruction or total or partial condemnation of the
Property prior to the Closing Date, at Purchaser's
option, Purchaser may consummate the purchase of the
Property, or may terminate this Agreement written notice
to Seller provided within fifteen (15) days after
Purchaser's receipt of notice of the occurrence of such
destruction or condemnation. Purchaser shall be bound to
purchase the Property for the Purchase Price as required
by the terms hereof if Purchaser elects to consummate the
purchase. Purchaser's election hereunder must be
exercised within fifteen (15) days from the date
Purchaser receives notice of such damage, destruction, or
condemnation proceeding.
8.2 Election to Close. If Purchaser elects to proceed with
the purchase of the Property hereunder, all insurance or
condemnation proceeds shall be paid to Purchaser (or
assigned, if not yet collected), less only such monies
actually expended by Seller to repair the damage to the
extent such expenditure is approved in writing by
Purchaser, which approval shall not be unreasonably
withheld, and Purchaser shall receive a credit against
the cash portion of the Purchase Price, in the event of
a casualty loss, in the amount of Seller's deductible
under its casualty insurance policy. If the insurance
claims have not been settled, or the condemnation
proceeds determined, Purchaser shall receive a credit at
Closing against the cash portion of the Purchase Price in
the amount of the repair costs or the loss of value of
the condemned portion, as agreed upon by Purchaser and
Seller, and Seller shall retain all insurance claims and
condemnation proceeds.
8.3 Risk of Loss. Except as otherwise provided herein, the
risk of loss prior to Closing rests with Seller, and
Seller hereby covenants to keep and maintain casualty
insurance prior to the Closing Date in an amount not less
than the full replacement cost of the Building.
9. Closing Provisions
9.1 Closing. This purchase and sale transaction shall be
closed on the Closing Date at the offices of the issuer
of the Title Insurance, or such other place as Purchaser
and Seller may mutually agree, or by mail.
9.2 Closing Instruments. Purchaser and Seller shall each
submit to the Escrow Agent such escrow instructions as
the Escrow Agent reasonably requests or as they deem
necessary or desirable, provided that such instructions
are not in conflict with the terms of this Agreement.
9.3 Purchaser's Funds and Documents. On or before the
Closing Date, Purchaser shall cause to be delivered to
the Escrow Agent, for delivery to Seller on the Closing
Date, each of the following:
(a) The sums specified in Section 2 herein, which sums are
payable in cash, by certified or cashier's check, wire
transfer, or otherwise immediately available federal
funds.
(b) All funds required of Purchaser by reason of the
prorations and adjustments described herein and the
obligations of Purchaser for costs and expenses as set
forth herein.
(c) A lease agreement to be executed by Purchaser and Seller,
regarding Seller's retained use of 190 parking spaces
within the parking garage located upon the Plymouth Plaza
Property.
(d) Any other instruments necessary or desirable to carry out
the provisions of this Agreement.
9.4 Seller's Instruments. On or before the Closing Date,
Seller shall cause to be delivered to the Escrow Agent,
for delivery to Purchaser on the Closing Date, each of
the following:
(a) A Special Warranty Deed, fully executed and acknowledged
by Seller conveying title to the Property to Purchaser,
subject only to the encumbrances approved by Purchaser
hereunder.
(b) A Bill of Sale fully executed by Seller, conveying to
Purchaser with full warranties of title its fee simple
interest in the Tangible Personal Property, free and
clear of any liens, claims, and encumbrances of any kind
whatsoever, except those approved by Purchaser in
writing.
(c) Any funds necessary to satisfy Seller's obligations
arising from the prorations and adjustments described
herein and for costs and expenses as set forth herein.
(d) The originals of the Leases, Licenses, all warranties and
guarantees affecting the Project, Plans, Permits,
Contracts, and any other original documents requested by
Purchaser, by assignments and assumptions in form that
meet with the reasonable approval of Purchaser.
(e) A Certificate of Non-foreign Status acceptable to
Purchaser.
(f) A certificate confirming that the representations and
warranties of Seller contained herein are true and
accurate as of the Closing Date.
(g) A fully executed Certificate Regarding Hazardous
Substances in substantially the form attached hereto as
Exhibit B.
(h) Notice to tenants advising the tenants of the sale to
Purchaser.
(i) Closing Statement including prorations provided herein.
(j) Certificate evidencing that Seller and Sellers general
partners are in good standing under the laws of their
state of organization.
(k) Partnership resolutions (and corporate resolutions of any
corporate general partner of Seller), authorizing
Seller's execution of all closing documents.
(l) Affidavit regarding liens and possession, consistent with
the terms of this Purchase and Sale Agreement, and
sufficient to allow for the deletion of the standard
exceptions of title relating to construction liens.
(m) A lease agreement to be executed by Purchaser and Seller,
regarding Seller's retained use of 190 parking spaces
within the parking garage located upon the Plymouth Plaza
Property, which lease shall be negotiated during the
Inspection Period.
(n) Any other instruments necessary to carry out the
provisions of this Agreement.
9.5 Other Matters Outside of Escrow. Seller shall deliver to
Purchaser all keys to the Property on the Closing Date,
but outside of Escrow. Legal possession of the Project
shall be delivered to Purchaser on the date of Closing.
It is understood that the Project is now occupied by
various tenants under written leases, and occupancy of
the Project shall be delivered to Purchaser upon closing
subject to the rights of tenants. Closing documents may
be executed in counterparts.
9.6 Adjustments; Prorations on Closing. All rents, water and
sewer use charges, current real estate taxes and personal
property taxes, and service contract charges shall be
prorated between the parties as of the date of closing.
Accrued income and expense, including taxes, for the day
of closing, shall accrue to the purchaser. Real and
personal property taxes shall be prorated based upon
taxes for 2002 if known, otherwise on the taxes for 2001.
The Seller shall give the Purchaser a credit on the
Closing Statement for prepaid rents. The Purchaser shall
receive a credit for the tenant security deposits, plus
interest if interest is required to be paid to the
tenants under Florida law or under the applicable lease,
at closing, or Purchaser shall receive cash in the amount
thereof at closing. The Purchaser shall receive a credit
for all deposits made by tenants for common area
maintenance, taxes, insurance or any other deposits or
payments made by the tenants under the tenant leases.
The Seller shall pay all special assessments for work
commenced or levied prior to the date of closing and
Purchaser shall be responsible for all other special
assessments. Rents for the month of closing shall be
prorated to the extent collected, and if any rents are
collected after closing for the month of closing, such
shall be promptly prorated upon receipt. Delinquent
rents, if and when collected by the Purchaser (Purchaser
shall make a good faith effort to collect the same),
shall remain the property of Seller and be remitted
promptly to the Seller by the Purchaser from the first
rents received from said delinquent tenants after current
rents and other amounts paid.
9.7 Assessments, Levies, and Charges. All assessments,
levies, or charges for public improvements disclosed in
writing to Purchaser and imposed against the Property by
any governmental authority or which Seller has contracted
to pay shall be assumed by Purchaser on the Closing Date.
Purchaser shall not be liable to assume any payments of
interest, penalties, or delinquency charges incurred by
Seller or otherwise arising prior to the Closing Date.
9.8 Costs of Closing
9.8.1 Seller's Costs and Expenses. At Closing, Seller
shall pay (i) documentary stamp and/or transfer taxes on
the deed (ii) any real estate transfer taxes attributable
to the transfer of the Property; (iii) the premium (at
the promulgated rate, after application of any reissue
credit available) for the Owner's Title Insurance Policy;
and (iv) all attorneys' fees incurred by Seller with
respect to negotiating this Agreement and in consummating
the transaction contemplated herein.
9.8.2 Purchaser's Costs and Expenses. At Closing,
Purchaser shall pay (i) all recording costs and taxes
incurred incident to the Purchaser's taking title to the
Property subject to the loan documents held by Teachers;
(ii), all fees and other costs charged by Teachers
incident to Purchaser's taking title to the Property
subject to the loan documents held by Teachers, as
described herein, not to exceed $5,000; (iii) all
recording costs of the deed and/or mortgage, if any; (iv)
the cost of the Survey, if any, (v) all attorneys' fees
incurred by Purchaser with respect to negotiating this
Agreement and in consummating the transaction
contemplated herein; and (vi) the real estate commission
due Collier's Arnold. Purchaser shall also pay for, or
reimburse Seller, for all commissions, or tenant
improvement expenses, due to third parties not affiliated
with Seller or Reed Development Company, incident to
execution of new leases, or renewals of existing leases
which occur prior to closing, of all or any portion of
the Property, consistent with the terms set forth above.
10. Remedies
10.1 Failure to Close. If, without breach by Seller or
Purchaser, the contingencies and conditions to Closing
are not and cannot be eliminated, satisfied, or waived
within the time limits set forth herein, either party may
either withdraw from and terminate this Agreement or
waive the condition or portion thereof which cannot be
satisfied and proceed with Closing. If terminated, this
Agreement shall be deemed null and void, the Earnest
Money shall be returned to Purchaser, and the Escrow
shall be canceled.
10.2 Seller's Breach. If Seller breaches this Agreement and
fails to close the sale contemplated hereby through no
fault of Purchaser, Purchaser shall be entitled, at
Purchaser's election (a) to terminate its obligations to
perform further under this Agreement and recover any and
all damages; (b) to seek specific performance of this
Agreement; and (c) to pursue any and all remedies in
addition to or by way of alternative to the foregoing
available at law or in equity. The Earnest Money, with
interest, shall be refunded to Purchaser immediately upon
demand.
10.3 Purchaser's Breach. If Purchaser breaches this Agreement
and fails to close the purchase contemplated hereby
through no fault of Seller, Seller shall be entitled, as
Seller's sole remedy to receive the Earnest Money paid or
to be paid hereunder, and retain it as liquidated damages
and not as a penalty.
11. General Provisions
11.1 Possession. Purchaser shall be entitled to possession of
the Property (subject to any existing leases) at Closing.
On or before Closing, Seller shall deliver to the
possession of Purchaser all the Tangible Personal
Property and the Intangible Personal Property.
11.2 Attorneys' Fees. In any proceeding brought to enforce
this Agreement or to determine the rights of the parties
under this Agreement, the prevailing party shall be
entitled to collect, in addition to any judgment awarded
by a court, a reasonable sum as attorneys' fees, and all
costs and expenses incurred in connection with such a
lawsuit, including attorneys' fees, expenses of
litigation, and costs of appeal. For purposes of this
Agreement, the prevailing party shall be that party in
whose favor final judgment is rendered or who
substantially prevails, if both parties are awarded
judgment. The term "proceeding" shall mean and include
arbitration, administrative, bankruptcy, and judicial
proceedings including appeals.
11.3 Assignability. Purchaser shall have the right to convey,
transfer, or assign all or any part of its interest in
the Property and its rights and privileges under the
terms of this Agreement without the consent of Seller.
11.4 Notices. All notices required or permitted hereunder
shall be in writing and shall either be delivered in
person or sent by certified or registered mail, return
receipt requested, and shall be deemed received on the
earlier of actual receipt or five days after being
deposited in the mail, postage prepaid, addressed to
Seller or Purchaser at the address set forth below:
Seller: ABR Plymouth Plaza, Ltd.
ABR Spectrum, Ltd.
6630 Rowan Road
New Port Richey, FL 34653
With copy to
Seller's Attorney: QUARLES & BRADY LLP
Attn: Leo J. Salvatori
4501 North Tamiami Trail, Suite 300
Naples, Florida 34103
Purchaser: Decade Properties
Attn: Jeff Keierleber
250 Patrick Blvd., Suite 140
Brookville WI 53045
With copy to
Purchaser's Attorney: ________________
________________
________________
Notice of a change of address shall be given by written
notice in the manner detailed above.
11.5 Mutual Indemnification. Seller shall indemnify, defend,
and hold Purchaser harmless from any and all loss,
liability, damage, and expense (including attorneys'
fees, expenses of litigation, and costs of appeal) which
Purchaser may incur or suffer following Closing by reason
of any material inaccuracy of any representation or
material breach of any warranty or covenant of Seller
contained in this Agreement. Purchaser shall indemnify,
defend, and hold Seller harmless from any and all loss,
liability, damage, and expense (including attorneys'
fees, expenses of litigation, and costs of appeal) which
Seller may incur or suffer following Closing by reason of
any material inaccuracy of any representation or material
breach of any warranty or covenant of Purchaser contained
in this Agreement.
11.6 Cooperation. Seller and Purchaser shall cooperate at all
times from and after the date hereof with respect to the
supplying of any information requested by the other
regarding any of the matters set forth in this Agreement.
Seller and Purchaser agree to execute any and all other
instruments and documents as may be reasonably required
in order to consummate the purchase and sale contemplated
herein, and shall use their best efforts to accomplish
Closing in accordance with the provisions of this
Agreement.
11.7 Binding Effect. The covenants, agreements,
representations, and warranties contained herein shall
extend to and be obligatory upon the successors and
assigns of the respective parties hereto.
11.8 Amendment. This Agreement may be amended only by written
instrument executed by Seller and Purchaser.
11.9 Entire Understanding. This Agreement, and the documents
incorporated herein, embody the entire agreement between
the parties with relation to the transactions
contemplated hereby. There have been and are no
covenants, agreements, representations, warranties, or
restrictions between the parties with regard thereto
other than those set forth herein or for which there has
been provision made herein. The provisions of this
Agreement cannot be waived except by written agreement of
the party against whom a waiver shall be asserted. No
waiver or consent to any breach or other default in the
performance of any of the terms of this Agreement shall
be deemed to constitute a waiver of any subsequent breach
of the same or any other term or condition hereof.
11.10 Counterparts. This Agreement may be executed
simultaneously in counterparts, each of which shall be an
original, but all of which together shall constitute one
and the same instrument.
11.11 Severability. The unenforceability, invalidity,
illegality, or termination of any provision of this
Agreement shall not render any other provision of this
Agreement unenforceable, invalid, or illegal and shall
not terminate this Agreement or impair the rights or
obligations of the parties hereto.
11.12 Captions. Section or paragraph titles or other
headings contained in this Agreement are for convenience
only and shall not be a part of this Agreement, or
considered in its interpretation.
11.13 Applicable Law. This Agreement shall be governed by
and construed in accordance with the laws of the state of
Florida.
11.14 Radon Gas Disclosure. Florida law requires the
following disclosure: "Radon is a naturally occurring
radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health
risk to persons who are exposed to it over time. Levels
of radon that exceed federal and state guidelines have
been found in buildings in Florida. Additional
information regarding radon and radon testing may be
obtained from your county public health unit."
11.15 Disclosure. Purchaser does hereby disclose that
Robert M. Reed II is a Florida licensed real estate
broker.
11.16 Tax-Deferred Exchange. Seller, Purchaser, or both,
may wish to treat the transaction contemplated herein as
part of a tax-deferred exchange under Section 1031 of the
Internal Revenue Code. The parties hereto do hereby agree
to cooperate with each other, and to execute such
documents as the other may reasonably prescribe, in order
to accomplish such tax=deferred exchange.
12. Expiration Date of Offer
12.1 Expiration of Offer. The offer contained in this
Agreement shall automatically expire, be rescinded, and
be null and void if not accepted by Seller with five (5)
days after delivery of this Agreement to Seller.
12.2 Manner of Acceptance. Acceptance of this Agreement may
be made only by execution hereof (or of a duplicate
hereof) and delivery of the same to Purchaser within the
time set forth in Paragraph 2.1.
EXECUTED as of the day and year first above written.
WITNESSES:
Witness #1 (print name below)
Witness #2 (print name below)
SELLER
ABR SPECTRUM, LTD., a Florida limited partnership
(Corporate Seal)
By: REED DEVELOPMENT COMPANY, a Florida corporation, as General
Partner
By: /s/ Robert M. Reed II
Robert M. Reed, II, as President
Date:
Tax I.D. Number: 65-0364763
WITNESSES:
Witness #1 (print name below)
Witness #2 (print name below)
SELLER
ABR PLYMOUTH PLAZA, LTD., a Florida limited partnership
(Corporate Seal)
By: REED DEVELOPMENT COMPANY, a Florida corporation, as General
Partner
By: /s/ Robert M. Reed, II
Robert M. Reed, II, as President
Date:
Tax I.D. Number: 65-0369722
WITNESSES:
Witness #1 (print name below)
Witness #2 (print name below)
PURCHASER
(Corporate Seal)
DECADE PROPERTIES, INC., a Wisconsin corporation
By: /s/ Jeffrey Keierleber
Jeffrey Keierleber
Its: President
Date: 6/10/02
Tax I.D. Number: 39-1375152
RECEIPT
Escrow Agent does hereby acknowledge receipt of the initial
deposit monies described in Paragraph 2.2.2(a) herein, subject
to clearance, this _____ day of May, 2002.
QUARLES & BRADY LLP
By: /s/ Leo J. Salvatori
Leo J. Salvatori, as
general partner
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
SELLER'S CERTIFICATE
REGARDING HAZARDOUS SUBSTANCES
The undersigned, ABR PLYMOUTH PLAZA, LTD., a Florida limited
partnership, the "Seller" under the Purchase and Sale Agreement
with DECADE PROPERTIES, INC., a Wisconsin corporation, as
"Purchaser", dated May _____, 2002, (the "Agreement"), hereby
certifies, represents, warrants, and covenants as follows:
1. For purposes of this Certificate, "Hazardous Substance"
shall mean and include any oil, hazardous substance, hazardous
material, hazardous waste, pollutant, contaminant, dangerous
waste, extremely hazardous waste, toxic waste, asbestos, or
air pollution, as such terms or similar terms as now or
hereafter defined, used, or understood in or under any
federal, state, county, city, or other governmental statue,
rule, ordinance, order, or regulation which relates in any way
to the protection of the environment ("Environmental Laws").
2. There is no Hazardous Substance in, upon, or buried in
the real property described in Exhibit A attached hereto and
incorporated herein by this reference (the "Real Property"),
nor has any Hazardous Substance been emitted or released from
the Real Property in violation of any Environmental Law.
3. In no event shall Seller bring onto, store upon, bury,
use upon, emit or release from, nor allow to be brought onto,
stored upon, or emitted or released from the Real Property,
any Hazardous Substance in violation of any Environmental Law.
4. There are no underground storage tanks located on the
Real Property, including storage tanks which contain or
previously contained any Hazardous Substance.
5. Seller shall indemnify and hold Purchaser and the
successors and assigns, and the officers, directors, and
agents, if any, thereof, and the Real Property and any
improvements thereon, harmless from and against any claim,
cost, damage, or expense, including attorneys' fees, response
costs, and penalties, with respect to any breach of any
certification, representation, warranty, or covenant contained
herein.
6. The certifications, representations, warranties, and
covenants contained herein shall be made apart of the
Agreement and all other documents relating to the Agreement,
and shall survive any investigation by Purchaser, the closing
of the transaction contemplated by the Agreement, and the
exercise of any remedies by Purchaser in the event of a
default under the Agreement or any document relating thereto,
including without limitation foreclosure or obtaining title to
the Real Property in lieu of foreclosure.
Executed as of May ____, 2002.
SELLER
ABR PLYMOUTH PLAZA, LTD., a Florida limited partnership
(Corporate Seal)
By: REED DEVELOPMENT COMPANY, a Florida corporation, as General
Partner
By: /s/ Robert M. Reed, II
Robert M. Reed, II, as President
SELLER'S CERTIFICATE
REGARDING HAZARDOUS SUBSTANCES
The undersigned, ABR SPECTRUM, LTD., a Florida limited
partnership, the "Seller" under the Purchase and Sale
Agreement with DECADE PROPERTIES, INC., a Wisconsin
corporation, as "Purchaser", dated May _____, 2002, (the
"Agreement"), hereby certifies, represents, warrants, and
covenants as follows:
1. For purposes of this Certificate, "Hazardous Substance"
shall mean and include any oil, hazardous substance,
hazardous material, hazardous waste, pollutant, contaminant,
dangerous waste, extremely hazardous waste, toxic waste,
asbestos, or air pollution, as such terms or similar terms
as now or hereafter defined, used, or understood in or under
any federal, state, county, city, or other governmental
statue, rule, ordinance, order, or regulation which relates
in any way to the protection of the environment
("Environmental Laws").
2. There is no Hazardous Substance in, upon, or buried in
the real property described in Exhibit A attached hereto and
incorporated herein by this reference (the "Real Property"),
nor has any Hazardous Substance been emitted or released
from the Real Property in violation of any Environmental
Law.
3. In no event shall Seller bring onto, store upon, bury,
use upon, emit or release from, nor allow to be brought
onto, stored upon, or emitted or released from the Real
Property, any Hazardous Substance in violation of any
Environmental Law.
4. There are no underground storage tanks located on the
Real Property, including storage tanks which contain or
previously contained any Hazardous Substance.
5. Seller shall indemnify and hold Purchaser and the
successors and assigns, and the officers, directors, and
agents, if any, thereof, and the Real Property and any
improvements thereon, harmless from and against any claim,
cost, damage, or expense, including attorneys' fees,
response costs, and penalties, with respect to any breach of
any certification, representation, warranty, or covenant
contained herein.
6. The certifications, representations, warranties, and
covenants contained herein shall be made apart of the
Agreement and all other documents relating to the Agreement,
and shall survive any investigation by Purchaser, the
closing of the transaction contemplated by the Agreement,
and the exercise of any remedies by Purchaser in the event
of a default under the Agreement or any document relating
thereto, including without limitation foreclosure or
obtaining title to the Real Property in lieu of foreclosure.
Executed as of May ____, 2002.
SELLER
ABR SPECTRUM, LTD., a Florida limited partnership
(Corporate Seal)
By: REED DEVELOPMENT COMPANY, a Florida corporation, as General
Partner
By: /s/ Robert M. Reed, II
Robert M. Reed, II, as President
EXHIBIT C
PERMITTED EXCEPTIONS
Spectrum Property:
1. Mortgage from ABR Spectrum, Ltd., in favor of First Union
National Bank of Florida, recorded in official Record Book 4483,
Page 2903, of the Public Records of Orange County, Florida.
Said Mortgage was assigned to Teachers Insurance and Annuity
Association of America by documents recorded in Official Record
Book 5294, Page 908, of the Public Records of Orange County,
Florida. Said Mortgage was then modified and restated in its
entirety by instrument recorded in Official Record Book 5294,
Pages 912, et seq., of the Public Records of Orange County,
Florida.
2. Restrictions, conditions, reservations, easements, and other
matters contained on the Plat of Maitland Center, Section 3, as
recorded in Plat Book 10, Page 10, of the Public Records of
Orange County, Florida; as modified by that certain ordinance
vacating easement recorded in Official Record Book 3739, Page
2080, of the Public Records of Orange County, Florida.
3. Restrictive covenants contained in that certain Deed recorded
June 12, 1981, in Official Record Book 3165, Page 272, of the
Public Records of Orange County, Florida. The power to enforce
said restrictive covenants was assigned, in part, to Maitland
Center Property Owner's Association, Inc., by document recorded
April 3, 1986, in Official Record Book 3768, Page 616, of the
Public Records of Orange County, Florida. Said restrictive
covenants were further modified by that certain Agreement and
Consent recorded June 28, 1984, in Official Record Book 3523,
Page 793, of the Public Records of Orange County, Florida.
4. Covenants, conditions and restrictions recorded October 19,
1984 in Official Record Book 3567, Page 2575, of the Public
Records of Orange County, Florida.
5. Grant of easement recorded June 5, 1985 in Official Record
Book 3649, Page 1433, of the Public Records of Orange County,
Florida. Said grant of easement was modified by that certain
Agreement and consent recorded June 28, 1984, in Official Record
Book 3523, Page 793, of the Public Records of Orange County,
Florida.
6. Drainage easement recorded November 18, 1985 in Official
Record Book 3715, Page 65, of the Public Records of Orange
County, Florida.
7. Utility easement recorded November 18, 1985 in Official Record
Book 3715 Page 69, of the Public Records of Orange County,
Florida.
8. Easement in favor of Florida Power Corporation recorded
October 30, 1986 in Official Record Book 3832, Page 667, of the
Public Records of Orange County, Florida.
9. The rights of those tenants in possession.
10. 2002 real estate taxes bearing Property Identification Number
26-21-29-5468-00094.
11. This policy does not insure riparian or littoral rights, or
the title to tidelands, sovereignty lands, or land now or
formerly comprised in the shores or bottoms of navigable waters,
or lying below the ordinary mean high watermark of Loch Lamond,
as reflected on the survey of Teachers Insurance and Annuity
Association of America premises prepared by Civil Design Group,
Inc., last dated June 26, 1997, including lands created by
filling of the bottoms of water bodies or water courses or by
artificially extending natural uplands beyond the ordinary or
mean high water line of a water body or water course.
12. Assignment of Rents, Leases, Profits and Contracts, from ABR
Spectrum, Ltd., in favor of First Union National Bank of
Florida, recorded in Official Record Book 4483, Page 2928, of
the Public Records of Orange County, Florida, to Teachers
Insurance and Annuity Association of America. Said Assignment
was assigned to Teachers Insurance and Annuity Association of
America by instrument recorded in Official Record Book 5294,
Page 1002, of the Public Records of Orange County, Florida. Said
Assignment was modified and restated by document recorded in
Official Record Book 5294, Page 1002, of the Public Records of
Orange County, Florida.
13. UCC-1 Financing Statement from ABR Spectrum, Ltd., in favor of
First Union National Bank of Florida, recorded in Official
Record Book 4483, Page 2938, of the Public Records of Orange
County, Florida. Said Financing Statement was assigned to
Teachers Insurance and Annuity Association of America by
instrument recorded in Official Record Book 5294, Page 1018, of
the Public Records of Orange County, Florida. Said Financing
Statement was modified and restated by document recorded in
Official Record Book 5294, Page 1018, of the Public Records of
Orange County, Florida.
Plymouth Property:
14. Easement in favor of Florida Power Corporation recorded in
Official Record Book 6090, Page 835, of the Public Records of
Pinellas County, Florida.
15. Easement contained in that certain instrument recorded January
30, 1973, in Official Record Book 3986, Page 85, of the Public
Records of Pinellas County, Florida.
16. Easements in favor of the City of Clearwater recorded in
Official Record Book 4223, Page 1502; Official Record Book 4442,
Page 1147; Official Record Book 4595, Page 56; and Official
Record Book 9524, Page 266, all of the Public Records of
Pinellas County, Florida.
17. Reciprocal easement agreement recorded in Official Record Book
4245, Page 1654; and in Official Record Book 4282, Page 1150, of
the Public Records of Pinellas County, Florida.
18. Reciprocal easement and parking agreement recorded in Official
Record Book 4416, Page 98, of the Public Records of Pinellas
County, Florida.
19. Restrictions contained in those deeds recorded in Official
Record Book 4415, Page 1151; and in Official Record Book 4434,
Page 842, of the Public Records of Pinellas County, Florida.
20. The rights of those tenants in possession.
21. 2002 real estate taxes bearing Folio Number 30-28-16-00000-
340-0100.
22. Assignment of Rents, Leases, Profits and Contracts, from ABR
Plymouth Plaza, Ltd., in favor of The Chase Manhattan Bank,
N.A., recorded December 3, 1992, in Official Record Book 8108,
Page 2202, of the Public Records of Pinellas County, Florida.
Said Assignment was assigned to Teachers Insurance and Annuity
Association of America by instrument recorded in Official Record
Book 9788, Page 831, of the Public Records of Pinellas County,
Florida. Said Assignment was modified and restated by document
recorded in Official Record Book 9788, Page 928, of the Public
Records of Pinellas County, Florida.
23. UCC-1 Financing Statement from ABR Plymouth Plaza, Ltd., in
favor of The Chase Manhattan Bank, N.A., recorded in Official
Record Book 8108, Page 2214, of the Public Records of Pinellas
County, Florida. Said Financing Statement was assigned to
Teachers Insurance and Annuity Association of America by
instrument recorded in Official Record Book 9788, Page 831, of
the Public Records of Pinellas County, Florida. Said Financing
Statement was modified and restated by document recorded in
Official Record Book 9788, Page 944, of the Public Records of
Pinellas County, Florida.
24. Mortgage from ABR Plymouth Plaza, Ltd., a Florida limited
partnership, in favor of The Chase Manhattan Bank, N.A.,
recorded in Official Record Book 8108, Page 2182, of the Public
Records of Pinellas County, Florida. Said Mortgage was assigned
to Teachers Insurance and Annuity Association of America by
document recorded in Official Record Book 9788, Page 831, of the
Public Records of Pinellas County, Florida. Said Mortgage was
then modified and restated in its entirety by instrument
recorded in Official Record Book 9788, Page 912, of the Public
Records of Pinellas County, Florida.
25. Lease in favor of ABR Plymouth Plaza, Ltd., for 190 parking
spaces within the parking garage located upon the Plymouth Plaza
Property, for use of the owner of the vacant lands now owned by
ABR Plymouth Plaza, Ltd.
EXHIBIT 10.40
LETTERHEAD OF:
ABR Plymouth Plaza, Ltd.
ABR Spectrum, Ltd.
6630 Rowan Road
New Port Richey, FL 34653
May 29, 2002
Mr. Jeff Keierleber, President
Decade Properties
250 Patrick Blvd., Suite 140
Brookville, WI 53045
RE: ABR Spectrum/ABR Plymouth Plaza sale to Decade
Properties
Dear Mr. Keierleber:
This letter will confirm our discussions with regard to the
foregoing matter. This letter will confirm as follows:
1. The Purchase and Sales Agreement between our respective
companies dated June 12, 2002 provides that the Inspection
Period (as defined in the Purchase and Sale Agreement)
expires 30 days after the Effective Date of that
agreement. This letter will confirm that in the event
that Teachers Insurance and Annuity Association of America
has not yet consented to your assuming the existing loan
documents held by Teachers encumbering the properties
described in that agreement, or taking title to said
properties subject to said loan documents, that the
undersigned will be willing to extend the Inspection
Period until the earlier of the date that Teachers grants
their consent to the assumption/conveyance, or 45 days
from the Effective Date.
2. As you also know, the closing of the transaction is
scheduled to take place 45 days from the Effective Date.
However, this letter will confirm that in the event that
Teachers has not consented to your assumption of the loan
documents or taking title subject to the loan documents,
within the initial 30 day Inspection Period, and the
Inspection Period is thus extended in accordance with the
provisions set forth in the paragraphs set forth above,
that closing shall take place 15 days after the conclusion
of the extended Inspection Period.
Both the extension of the Inspection Period, and the extension of
the date of closing, are available to you at your option, at no
cost, expense or fee. All you need do is simply notify us in
writing of the necessity of extending the Inspection Period and/or
Closing Date in writing, as facts may then so warrant.
To signify your consent to the foregoing, I would appreciate your
executing the duplicate copy of this letter and returning the same
to me. We look forward to a mutually benefit closing of the
transaction.
Respectfully,
ABR PLYMOUTH PLAZA, LTD., and
ABR SPECTRUM, LTD.
By: /s/ Robert M. Reed
Robert M. Reed, II, as
President of Reed Development
Company, a Florida corporation,
as General Partner of both
limited partnerships
CONSENTED AND AGREED:
(Corporate Seal)
DECADE PROPERTIES, INC., a
Wisconsin corporation
By: /s/ Jeff Keierleber
Jeff Keierleber, President
EXHIBIT 10.41
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (the
("First Amendment") is made to be effective as of July 29, 2002, by
and between ABR SPECTRUM, LTD., a Florida limited partnership, and
ABR PLYMOUTH PLAZA, LTD., a Florida limited partnership
(collectively, "Seller"), and DECADE COMPANIES INCOME PROPERTIES,
A LIMITED PARTNERSHIP, a Wisconsin limited partnership
("Purchaser").
BACKGROUND
Seller and DECADE PROPERTIES, INC., a Wisconsin corporation
("Decade"), entered into that certain Purchase and Sale Agreement
dated June 12, 2002; and thereafter amended by that certain letter
dated May 29, 2002 (collectively, the "Agreement") for the purchase
and sale of certain Property, which Property is comprised of the
Spectrum, Property and the Plymouth Plaza Property. Decade
assigned the Agreement to Purchaser by that certain Assignment of
Purchase Agreement dated July 25, 2002. Seller and Purchaser now
desire to modify and amend the Agreement.
AGREEMENT
NOW, THEREFORE, for and in consideration of the sum of Ten and
No/100ths Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged and anything to the contrary contained in the
Agreement notwithstanding, the parties hereto agree as follows:
1. Purchase Price/Allocation. The Purchase Price is hereby
adjusted to be (a) the principal balance of the existing loan (the
"Teachers' Loan") as of the Closing Date, plus (b) $125,000.00.
The Purchase Price shall be allocated as follows:
(y) Spectrum Property (total): $5,219,969.05
(i) Real Property and Building: $4,969,969.05
(ii) Tangible Personal Prop: $ 250,000.00
(iii) Intangible Personal Prop: $ 0.00
(z) Plymouth Plaza Property (total): $5,000,000.00
(i) Real Property and Building: $4,800,000.00
(ii) Tangible Personal Prop; $ 200,000.00
(iii) Intangible Personal Prop: $ 0.00
2. Earnest Money. Seller and Purchaser agree that (a) the
initial Earnest Money deposit shall be refundable through the
Closing Date; (b) at Closing, the initial Earnest Money deposit
hall be refunded to Decade as all of Purchaser's amounts to be aid
at Closing shall be delivered by Purchaser; and (c) Purchaser shall
not be required to post into escrow the additional deposit required
pursuant to Section 2.2(b) of the Agreement.
3. Inspection Period. Seller and Purchaser acknowledge that
the Inspection Period shall expire at 5:00 p.m. on July 30, 2002.
4. Plymouth Plaza Vacant Property. Seller and Purchaser a
agree that, at Closing, Seller shall retain title to a portion (the
"Vacant Plymouth Plaza Parcel") of the Plymouth Plaza Property
which Vacant Plymouth Plaza Parcel is more particularly described
by sketch on Exhibit "A-1" attached hereto and by legal description
on Exhibit "A-2" attached hereto. The Vacant Plymouth Plaza Parcel
shall be excluded from the Property at Closing.
5. Plymouth Plaza Property Cross Easements. By a reciprocal
easement document to be executed at Closing (a) Purchaser shall
grant to Seller for the benefit of the Vacant Plymouth Plaza
Parcel, and (b) Seller shall grant to Purchaser for the benefit of
the Plymouth Plaza Property, cross vehicular and pedestrian ingress
an egress easements over and across all of the paved areas at any
time located upon either the Plymouth Plaza Property or the Vacant
Plymouth Plaza Parcel, all upon terms to be incorporated into an
easement document mutually acceptable to Seller and Purchaser.
Purchaser agrees that this reciprocal easement shall be a Permitted
Exception.
6. Plymouth Plaza Parking Garage Lease. The lease
contemplated by Section 9.4(m) of the Agreement shall (a) confirm
that the number of parking spaces (the "Leased Spaces") within the
existing parking garage (the "Garage") to which Seller shall retain
use after Closing in conjunction with the prospective development
of the Vacant Plymouth Plaza Parcel is hereby adjusted to be 167
spaces; provided, however, in the event Seller, or Seller's
successor(s), construct a building (the "New Building") containing
less than 90,000 rentable square feet, on Vacant Plymouth Plaza
Parcel, then the total number of Leased Spaces shall automatically
be adjusted to be 1.8 parking spaces per 1,000 rentable square feet
within the New Building; (b) provide that Seller shall pay at all
times during the term of the lease for such retained use of the
Leased Spaces the then-current market rate for such spaces being
charged by Purchaser to new building tenants in the Plymouth Plaza
Property; and (c) memorialize Seller's agreement to cause, at
Seller's sole cost, all improvements to the existing elevator shaft
situated in the Garage (which was not built-out during initial
construction of the Garage), including, without limitation,
installation of an elevator and all attendant mechanical parts, in
the event any governmental authority requires this elevator to be
operational for Seller to use the Leased Spaces.
7. Spectrum Property/Sinkhole Repair. Seller, at Seller's
sole cost, shall, within thirty (30) days after the Closing repair
the existing sinkhole located at the Spectrum Property to a
condition reasonably acceptable to Purchaser. This Section shall
survive the Closing.
8. Tenant Estoppel Certificates/Notice to Tenants. Seller,
at Seller's sole cost, shall, within thirty (30) days after the
Closing, (a) deliver to all existing tenants at the Property the
notice to Tenants contemplated by Section 9.4 (h) of the Agreement,
and (b) obtain from such existing tenants at the Property executed
estoppel certificates in form and content identical to the form
attached hereto as Exhibit "B". This Section shall survive the
Closing.
9. Defined Terms. All capitalized terms not defined herein
shall have the meaning ascribed to them in the Agreement.
10. Further Modification. Except as modified herein, all
other terms, conditions and covenants of the Agreement shall remain
the same and in full force and effect.
IN WITNESS WHEREOF, this First Amendment has been duly
executed as of the day and year first above-written.
Signed, sealed and delivered
in the presence of: ABR SPECTRUM, LTD.,
a Florida limited partnership
By: REED DEVELOPMENT COMPANY,
a Florida corporation, as
General Partner
By: /s/ Robert M. Reed, II
Robert M. Reed, II, President
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
Exhibit "A"
(TO BE ATTACHED PRIOR TO EXECUTION)
EXHIBIT 10.42
This Consolidation and Renewal Promissory Note consolidates and
renews that certain Consolidation Promissory Note dated of even
date herewith in the original principal amount of $10,230,951.88
and that certain Future Advance Promissory Note dated of even date
herewith in the original principal amount of $619,048.12.
Documentary stamp taxes were paid upon both notes upon the
recording of that certain Assumption Agreement and Consolidation,
Renewal and Restatement of Mortgages and Security Agreements and
Assignments of Leases and Rents and Spreader Agreement and Notice
of Future Advance (the "Assumption Agreement"). Therefore,
pursuant to section 201.09 of the Florida Statutes and Rule 12B-
4.013(33), Florida Administrative Code, no additional documentary
stamps and intangible taxes are due on this Renewal Note.
TIAA Appl. #881
M - 000427300
RENEWAL PROMISSORY NOTE
$10,850,000 Naples, Florida
Dated: July 1, 1997
FOR VALUE RECEIVED, ABR SPECTRUM, LTD., a Florida limited
partnership, having its principal place of business at 4102B
Quixote Blvd., Tampa, Florida 33613, and ABR PLYMOUTH PLAZA, LTD.,
a Florida partnership, having its principal place of business at
4l02B Quixote Blvd., Tampa, Florida 33613 (collectively,
"Borrower") jointly and severally promise to pay to TEACHERS
INSURANCE AND ANNUITY ASSOCIATION OF AMERICA ("Lender"), a New York
corporation, or order, at Lender's offices at 730 Third Avenue, New
York, New York 10017 or at such other place as Lender designates in
writing, the principal sum of TEN MILLION EIGHT HUNDRED FIFTY
THOUSAND AND N0/100 DOLLARS ($10,850,000.00) (the principal sum or
so much of the principal sum as may be advanced and outstanding
from time to time, the "Principal"), in lawful money of the United
States of America, with interest on the Principal from the date of
this Promissory Note (this Note") through and including August 1,
2007 (the "Maturity Date") at the fixed rate of eight and forty-six
hundredths percent (8.46%) per annum (the "Fixed Interest Rate").
This Note is secured by, among other things, the Mortgage,
"Mortgage" (as defined in Assumption Agreement). All capitalized
terms not expressly defined in this Note will have the definitions
set forth in the Mortgage.
Section 1. Payments of Principal and Fixed Interest.
(a) Borrower will make monthly installment payments ("Debt
Service Payments") follows:
(i) On July 1, 1997, a payment of accrued interest on
the Principal at the Fixed Interest Rate; and
(ii) On September 1, 1997 and on the first day of each
succeeding calendar month through and including
July 1, 2007, payments in the amount of Eighty
Seven Thousand Seventy-Four and 87/00 Dollars
($87,074.87), each of which will be applied first
to interest on the Principal at the Fixed Interest
Rate and then to the Principal.
(b) On the Maturity Date, Borrower will pay the Principal in
full together with accrued interest at the Fixed Interest Rate and
all other amounts due under the Loan Documents.
Section 2. Prepayment Provisions.
(a) The following definitions apply:
"Discount Rate" means the yield on a U.S. Treasury issue
selected by Lender, as published in the Wall Street Journal,
two weeks prior to prepayment, having a maturity date
corresponding (or most closely corresponding, if not
identical) to the Maturity Date, and a coupon rate
corresponding (or most closely corresponding, if not
identical) to the Fixed Interest Rate.
"Default Discount Rate" means the Discount Rate less 300
basis points.
"Discounted Value" means the Discounted Value of a Note
Payment based on the following formula:
NP
(1 + R/12)n = Discounted Value
NP = Amount of Note Payment
R = Discount Rate or Default Discount Rate
as the case may be.
n = The number of months between the date
of prepayment and the scheduled date
of the Note Payment being discounted
rounded to the nearest integer.
"Note Payments" means (i) the scheduled Debt Service
Payments for the period from the date of prepayment through
the Maturity Date and (ii) the scheduled repayment of
Principal, if any, on the Maturity Date.
"Prepayment Date Principal" means the Principal on the date
of prepayment.
(b) This Note may not be prepaid in full or in part before
July 1, 2002 (the "Lockout Expiration Date"). Commencing on the
Lockout Expiration Date, provided there is no Event of Default,
Borrower may prepay this Note in full, but not in part, on the
first day of any calendar month, upon 90 days prior notice to
Lender and upon payment in full of all amounts payable under the
Loan Documents (the "Monetary Obligations") which will include a
payment (the "Prepayment Premium") equal to the greater of an
amount equal to the product of 2% times the Prepayment Date
Principal and (ii) the amount by which the sum of the Discounted
Values of Note Payments, calculated at the Discount Rate, exceeds
the Prepayment Date Principal. Provided there is no Event of
Default, this Note may be prepaid in full without payment of the
repayment Premium during the last 180 days of the Term. This Note
may not be prepaid without simultaneous prepayment in full of any
other notes secured by the Loan Documents.
(c) After an Event of Default and Acceleration, or upon any
prepayment not permitted by the Loan Documents, any tender of
payment of the amount necessary to satisfy all or any part of the
Monetary Obligations, any decree of foreclosure, any statement of
the amount due at the time of foreclosure and any tender of payment
during any redemption period after foreclosure, will include an
amount (the "Evasion Premium") equal to the greater of (i) an
amount equal to the product of 2% plus 300 basis points times the
Prepayment Date Principal, and (ii) the amount by which the sum of
the Discounted Values of the Note Payments, calculated at the
Default Discount Rate, exceeds the Prepayment Date Principal.
(d) Borrower acknowledges that:
(i) a prepayment will cause damage to Lender;
(ii) the Evasion Premium is intended to compensate
Lender for the loss of its investment and the expense
incurred and time and effort associated with making the
Loan, which will not be fully repaid if the Loan is prepaid;
(iii) it will be extremely difficult and impractical to
ascertain the extent of Lender's damages caused by a
prepayment after an Event of Default or any other prepayment
not permitted by the Loan Documents; and
(iv) the Evasion Premium represents Lender and
Borrower's reasonable estimate of Lender's damages for the
prepayment and is not a penalty.
Section 3. Events of Default:
(a) It is an "Event of Default" under this Note:
(i) if Borrower fails to pay any amount due, as
and when required, under this Note or any other Loan
Document and the failure continues for a period of 5 days,
provided that if Borrower fails twice in any 12-month period
to make a Debt Service Payment, as and when required, then
any additional failure to make a Debt Service Payment, as
and when required, will be an immediate Event of Default
without any grace period; or
(ii) if an Event of Default occurs under any other Loan
Document.
(b) If an Event of Default occurs, Lender may declare all or
any portion of the Monetary Obligations immediately due and payable
("Acceleration") and exercise any of the other Remedies.
Section 4. Default Rate. Interest on the Principal will
accrue at the Default Interest Rate from the date an Event of
Default occurs.
Section 5. Late Charges.
(a) If Borrower fails to pay any Debt Service Payment when
due and the failure continues for a period of 5 days or more or
fails to pay any amount due under the Loan Documents on the
Maturity Date, Borrower agrees to pay to Lender an amount (a "Late
Charge") equal to five cents ($.05) for each one dollar ($1.00) of
the delinquent payment.
(b) Borrower acknowledges that:
(i) a delinquent payment will cause damage to Lender;
(ii) the Late Charge is intended to compensate Lender
for loss of use of the delinquent payment and the expense
incurred and time and effort associated with recovering the
delinquent payment;
(iii) it will be extremely difficult and impractical to
ascertain the extent of Lender's damages caused by the
delinquency; and
(iv) the Late Charge represents Lender and Borrower's
reasonable estimate of Lender's damages from the delinquency
and is not a penalty.
Section 6. Limitation of Liability. This Note is subject to
the limitations on liability set forth in the Article of the
Mortgage entitled "Limitation of Liability".
Section 7. WAIVERS. IN ADDITION TO THE WAIVERS SET FORTH IN
THE ARTICLE OF THE MORTGAGE ENTITLED "WAIVERS", BORROWER WAIVES
PRESENTMENT FOR PAYMENT, DEMAND, DISHONOR AND, EXCEPT AS EXPRESSLY
SET FORTH IN THE LOAN DOCUMENTS, NOTICE OF ANY OF THE FOREGOING.
BORROWER FURTHER WAIVES ANY PROTEST, LACK OF DILIGENCE OR DELAY IN
COLLECTION OF THE MONETARY OBLIGATIONS OR ENFORCEMENT OF THE LOAN
DOCUMENTS. BORROWER AND ALL INDORSERS, SURETIES AND GUARANTORS OF
THE OBLIGATIONS CONSENT TO ANY EXTENSIONS OF TIME, RENEWALS,
WAIVERS AND MODIFICATIONS THAT LENDER MAY GRANT WITH RESPECT TO THE
OBLIGATIONS AND TO THE LEASE OF ANY SECURITY FOR THIS NOTE AND
AGREE THAT ADDITIONAL MAKERS MAY BECOME PARTIES TO THIS NOTE AND
ADDITIONAL INDORSERS, GUARANTORS OR SURETIES MAY BE ADDED WITHOUT
NOTICE AND WITHOUT AFFECTING THE LIABILITY OF THE ORIGINAL MAKER OR
ANY ORIGINAL INDORSER, SURETY OR GUARANTOR.
Section 8. Commercial Loan. The Loan is made for the purpose
of carrying on a business or commercial activity or acquiring real
or personal property as an investment or carrying on an investment
activity and not for personal or household purposes.
Section 9. Usury Limitations. Borrower and Lender intend to
comply with all Laws with respect to the charging and receiving of
interest. Any amounts charged or received by Lender or the use or
forbearance of the Principal to the extent permitted by Law, will
be amortized and read throughout the Term until payment in full so
that the rate or amount of interest charged or received by Lender
on account the Principal does not exceed the Maximum Interest Rate.
If amount charged or received under the Loan Documents that is
deemed to be interest is determined to be in excess of the amount
permitted to be charged or received at the Maximum Interest Rate,
the excess will be deemed to be a prepayment of Principal when
paid, without premium, and any portion of the excess not capable of
being so applied will be refunded to Borrower. If during the Term
the Maximum Interest Rate, if any, is eliminated, then for purposes
of the Loan, there will be no Maximum Interest Rate.
Section 10. Applicable Law. This Note is governed by and
will be construed in accordance with the Laws of the State of New
York without regard to conflict of law provisions.
Section 11. Time of the Essence. Time is of the essence with
respect to the payment and performance of the Obligations.
Section 12. Cross-Default. A default under any other note
now or hereafter secured by the Loan Documents or under any loan
document related to such other note constitutes a default under
this Note and under the other Loan Documents. When the default
under the other note constitutes an Event of Default under that
note or the related loan document, an Event of Default also will
exist under this Note and the other Loan Documents.
Section 13. Construction. Unless expressly provided
otherwise in this Note, this Note will be construed in accordance
with the Exhibit attached to the Mortgage entitled "Rules of
Construction".
Section 14. Mortgage Provisions Incorporated. To the extent
not otherwise set forth in this Note, the provisions of the
Articles of the Mortgage entitled "Expenses and Duty to Defend",
"Waivers", "Notices", and "Miscellaneous" are applicable to this
Note and deemed incorporated by reference as if set forth at length
in this Note.
Section 15. Joint and Several Liability; Successors and
Assigns. If Maker consists of more than one entity, the
obligations and liabilities of each such entity will be joint and
several. This Note binds Borrower and its successors, assigns,
heirs, administrators, executors, agents and resentatives and
inures to the benefit of Lender and its successors, assigns, heirs,
administrators, executors, agents and representatives.
Section 16. Absolute Obligation. Except for the Section of
this Note entitled "Limitation of Liability", no reference in this
Note to the other Loan Documents and no other provision of this
Note or of the other Loan Documents will impair or alter the
obligation of Borrower, which absolute and unconditional, to pay
the Principal, interest at the Fixed Interest Rate and any other
amounts due and payable under this Note, as and when required.
Section 17. Consolidation and Renewal of Notes. This Note
represents the renewal and consolidation of the indebtedness
evidenced by that certain Consolidation Note executed by Borrower
in favor of Lender as of even date herewith and that certain Future
Advance Promissory Note executed by Borrower in favor of Lender as
of even date herewith without enlargement of the principal balance
thereof.
IN WITNESS WHEREOF, Borrower has executed and delivered this
Note as of the date st set forth above.
ABR SPECTRUM, LTD., a Florida limited
partnership
By: /s/ Robert M. Reed
Robert M. Reed, II, Managing
General Partner
ABR PLYMOUTH PLAZA, LTD., a Florida
limited partnership
By: /s/ Robert M. Reed
Robert M. Reed, II, Managing
General Partner
EXHIBIT 10.43
This Consolidated Promissory Note consolidates that certain Real
Estate Promissory Note dated October 30, 1992 in the original
principal amount of $8,048,000 and that certain Promissory Note
dated November 23, 1992 in the original principal amount of
$2,896,000.
TIAA Appl. #881
M - 000427300
CONSOLIDATED PROMISSORY NOTE
$10,230,951.88 Naples, Florida
Dated: July 1, 1997
FOR VALUE RECEIVED, ABR SPECTRUM, LTD., a Florida limited
partnership, having its principal place of business at 4102B
Quixote Blvd., Tampa, Florida 33613, and ABR PLYMOUTH PLAZA, LTD.,
a Florida partnership, having its principal place of business at
4102B Quixote Blvd., Tampa, Florida 33613 (collectively,
"Borrower") jointly and severally promise to pay to TEACHERS
INSURANCE AND ANNUITY ASSOCIATION OF AMERICA ("Lender"), a New York
corporation, or order, at Lender's offices at 730 Third Avenue, New
York, New York 10017 or at such other place as Lender designates in
writing, the principal sum of TEN MILLION TWO HUNDRED THIRTY
THOUSAND NINE HUNDRED FIFTY-ONE AND 88/100 DOLLARS ($10,230,951.88)
(the principal sum or so much of the principal sum as may be
advanced and outstanding from time to time, the "Principal"), in
lawful money of the United States of America, with interest on the
Principal from the date of this Promissory Note (this "Note")
through and including August 1, 2007 (the "Maturity Date") at the
fixed rate of eight and forty-six hundredths percent (8.46%) per
annum. (the "Fixed Interest Rate").
This Note is secured by, among other things, the Consolidated
Mortgage as that term is defined in that certain Assumption
Agreement and Consolidation, Renewal and Restatement of Mortgages
and Security Agreements and Assignments of Leases and Rents and
Spreader Agreement and Notice of Future Advance (the "Assumption
Agreement") executed by the parties and recorded concurrently
herewith (the "Mortgage") the date of this Note made by Borrower
for the benefit of Lender as security for the Loan. All capitalized
terms not expressly defined this Note will have the definitions set
forth in the Mortgage.
_____________________
Documentary stamp taxes in the amount of $35,808.33 have been paid
on the mortgage concurrently with the execution and delivery
hereof.
Section 1. Payments of Principal and Fixed Interest.
(a) Borrower will make monthly installment payments ("Debt
Service Payments") as follows:
(i) On July 1, 1997, a payment of accrued interest on
the Principal at the Fixed Interest Rate; and
(ii) On September 1, 1997 and on the first day of each
succeeding calendar month through and including July 1,
2007, payments in the amount of _____________________
Dollars ($82,103.78), each of which will be applied
first to interest on the Principal at the Fixed
Interest Rate and then to the Principal.
(b) On the Maturity Date, Borrower will pay the Principal in
full together with accrued interest at the Fixed Interest Rate and
all other amounts due under the Loan Documents.
Section 2. Prepayment Provisions.
(a) The following definitions apply:
"Discount Rate" means the yield on a U.S. Treasury issue
selected by Lender, as published in the Wall Street Journal,
two weeks prior to prepayment, having a maturity date
corresponding (or most closely corresponding, if not
identical) to the Maturity Date, and a coupon rate
corresponding (or most closely corresponding, if not
identical) to the Fixed Interest Rate.
"Default Discount Rate" means the Discount Rate less 300
basis points.
"Discounted Value" means the Discounted Value of a Note
Payment based on the following formula:
NP
(1 + R/12)n = Discounted Value
NP = Amount of Note Payment
R = Discount Rate or Default Discount Rate
as the case may be.
n = The number of months between the date
of prepayment and the scheduled date of
the Note Payment being discounted
rounded to the nearest integer.
"Note Payments" means (i) the scheduled Debt Service
Payments for the period from the date of prepayment through
the Maturity Date and (ii) the scheduled repayment of
Principal, if any, on the Maturity Date.
"Prepayment Date Principal" means the Principal on the date
of prepayment.
(b) This Note may not be prepaid in full or in part before
July 1, 2002 (the "Lockout Expiration Date"). Commencing on the
Lockout Expiration Date, provided there is no Event of Default,
Borrower may prepay this Note in full, but not in part, on the
first day of any calendar month, upon 90 days prior notice to
Lender and upon payment in full of all amounts payable under the
Loan Documents (the "Monetary Obligations") which will include a
payment (the Prepayment Premium) equal to the greater of an amount
equal to the product of 2% times the Prepayment Date Principal and
(ii) the amount by which the sum of the Discounted Values of Note
Payments, calculated at the Discount Rate, exceeds the Prepayment
Date Principal. Provided there is no Event of Default, this Note
may be prepaid in full without payment of the Prepayment Premium
during the last 180 days of the Term. This Note may not be prepaid
simultaneous prepayment in full of any other notes secured by the
Loan Documents.
(c) After an Event of Default and Acceleration, or upon any
prepayment not permitted by the Loan Documents, any tender of
payment of the amount necessary to satisfy all or any part of the
Monetary Obligations, any decree of foreclosure, any statement of
the amount due at the time of foreclosure and any tender of payment
during any redemption period after foreclosure, will include an
amount (the "Evasion Premium") equal to the greater of (i) an
amount equal to the product of 2% plus 300 basis points times the
Prepayment Date Principal, and (ii) the amount by which the sum of
the Discounted Values of the Note Payments, calculated at the
Default Discount Rate, exceeds the Prepayment Date Principal.
(d) Borrower acknowledges that:
(i) a prepayment will cause damage to Lender;
(ii) the Evasion Premium is intended to compensate
Lender for the loss of its investment and the expense
incurred and time and effort associated with making the
Loan, which will not be fully repaid if the Loan is prepaid;
(iii) it will be extremely difficult and impractical
to ascertain the extent of Lender's damages caused by a
prepayment after an Event of Default or any other prepayment
not permitted by the Loan Documents; and
(iv) the Evasion Premium represents Lender and
Borrower's reasonable estimate of Lender's damages for the
prepayment and is not a penalty.
Section 3. Events of Default:
(a) It is an "Event of Default" under this Note:
(i) if Borrower fails to pay any amount due, as and
when required, under this Note or any other Loan Document
and the failure continues for a period of 5 days, provided
that if Borrower fails twice in any 12-month period to make
a Debt Service Payment, as and when required, then any
additional failure to make a Debt Service Payment, as and
when required, will be an immediate Event of Default without
any grace period; or
(ii) if an Event of Default occurs under any other
Loan Document.
(b) If an Event of Default occurs, Lender may declare all or
any portion of the Monetary Obligations immediately due and payable
("Acceleration") and exercise any of the other Remedies.
Section 4. Default Rate. Interest on the Principal will
accrue at the Default Interest Rate from the date an Event of
Default occurs.
Section 5. Late Charges.
(a) If Borrower fails to pay any Debt Service Payment, when
due and the failure continues for a period of 5 days or more or
fails to pay any amount due under the Loan Documents on the
Maturity Date, Borrower agrees to pay to Lender an amount (a "Late
Charge") equal to five cents ($.05) for each one dollar ($1.00) of
the delinquent payment.
(b) Borrower acknowledges that:
(i) a delinquent payment will cause damage to Lender;
(ii) the Late Charge is intended to compensate Lender
for loss of use of the delinquent payment and the expense
incurred and time and effort associated with recovering the
delinquent payment;
(iii) it will be extremely difficult and impractical,
to ascertain the extent of Lender's damages caused by the
delinquency; and
(iv) the Late Charge represents Lender and Borrower's
reasonable estimate of Lender's damages from the delinquency
and is not a penalty.
Section 6. Limitation of Liability. This Note is subject to
the limitations on liability set forth in the Article of the
Mortgage entitled "Limitation of Liability".
Section 7. WAIVERS. IN ADDITION TO THE WAIVERS SET FORTH IN
THE ARTICLE OF THE MORTGAGE ENTITLED "WAIVERS", BORROWER WAIVES
PRESENTMENT FOR PAYMENT, DEMAND, DISHONOR AND, EXCEPT AS EXPRESSLY
SET FORTH IN THE LOAN DOCUMENTS, NOTICE OF ANY OF THE FOREGOING.
BORROWER FURTHER WAIVES ANY PROTEST, LACK OF DILIGENCE OR DELAY IN
COLLECTION OF THE MONETARY OBLIGATIONS OR
ENFORCEMENT OF THE LOAN DOCUMENTS BORROWER AND ALL INDORSERS,
SURETIES AND GUARANTORS OF THE OBLIGATIONS CONSENT TO ANY
EXTENSIONS OF TIME, RENEWALS, WAIVERS AND MODIFICATIONS THAT LENDER
MAY GRANT WITH RESPECT TO THE OBLIGATIONS AND TO THE RELEASE OF ANY
SECURITY FOR THIS NOTE AND AGREE THAT ADDITIONAL MAKERS MAY BECOME
PARTIES TO THIS NOTE AND ADDITIONAL INDORSERS, GUARANTORS OR
SURETIES MAY BE ADDED WITHOUT NOTICE AND WITHOUT AFFECTING THE
LIABILITY OF THE ORIGINAL MAKER OR ANY ORIGINAL INDORSER, SURETY OR
GUARANTOR.
Section 8. Commercial Loan. The Loan is made for the purpose
of carrying on a business or commercial activity or acquiring real
or personal property as an investment or carrying on an investment
activity and not for personal or household purposes.
Section 9. Usury Limitations. Borrower and Lender intend to
comply with all Laws with respect to the charging and receiving of
interest. Any amounts charged or received by Lender for the use or
forbearance of the Principal to the extent permitted by Law, will
be amortized and read throughout the Term until payment in full so
that the rate or amount of interest charged or received by Lender
on account the Principal does not exceed the Maximum Interest Rate.
If any amount charged or received under the Loan Documents that is
deemed to be interest is determined to be in excess of the amount
permitted to be charged or received at the Maximum Interest Rate,
the excess will be deemed to be a prepayment of Principal when
paid, without premium, and any portion of the excess not capable of
being so applied will be refunded to Borrower. If during the Term
the Maximum Interest Rate, if any, is eliminated, then for purposes
the Loan, there will be no Maximum Interest Rate.
Section 10. Applicable Law. This Note is governed by and
will be construed in accordance with the Laws of the State of New
York without regard to conflict of law provisions.
Section 11. Time of the Essence. Time is of the essence with
respect to the payment and performance of the Obligations.
Section 12. Cross-Default. A default under any other note now
or hereafter secured by the Loan Documents or under any loan
document related to such other note constitutes a default under
this Note and under the other Loan Documents. When the default
under the other note constitutes an Event of Default under that
note or the related loan document, an Event of Default also will
exist under this Note and the other Loan Documents.
Section 13. Construction. Unless expressly provided
otherwise in this Note, this Note vill be construed in accordance
with the Exhibit attached to the Mortgage entitled "Rules of
Construction".
Section 14. Mortgage Provisions Incorporated. To the extent
not otherwise set forth in this Note, the provisions of the
Articles of the Mortgage entitled "Expenses and Duty to Defend",
"Waivers", "Notices", and "Miscellaneous" are applicable to this
Note and deemed incorporated by reference as if set forth at length
in this Note.
Section 15. Joint and Several Liability; Successors and
Assigns. If Maker consists of more than one entity, the
obligations and liabilities of each such entity will be joint and
several. This Note binds Borrower and successors, assigns, heirs,
administrators, executors, agents and representatives and inures to
the benefit of Lender and its successors, assigns, heirs,
administrators, executors, agents and representatives.
Section 16. Absolute Obligation. Except for the Section of
this Note entitled "Limitation of Liability", no reference in this
Note to the other Loan Documents and no other provision of this
Note or of the other Loan Documents will impair or alter the
obligation of Borrower, which is absolute and unconditional, to pay
the Principal, interest at the Fixed Interest Rate and any other
amounts due and payable under this Note, as and when required.
Section 17. Consolidation and Renewal of Notes. This
Consolidated Promissory Note consolidates that certain Real Estate
Promissory Note dated October 30, 1992 in the original principal
amount of $8,048,000 executed by ABR Spectrum, Ltd., in favor of
First Union National Bank of Florida, a national banking
association, and that certain Promissory Note dated November 23,
1992 in the original principal amount of $2,896,000 executed by ABR
Plymouth Plaza, Ltd., in favor of The Chase Manhattan Bank, N.A.,
a national banking association.
IN WITNESS WHEREOF, Borrower has executed and delivered this
Note as of the date first set forth above.
ABR SPECTRUM, LTD., a Florida limited
partnership
By: /s/ Robert M. Reed
Robert M. Reed, II, Managing
General Partner
ABR PLYMOUTH PLAZA, LTD., a Florida
limited partnership
By: /s/ Robert M. Reed
Robert M. Reed, II, Managing
General Partner
EXHIBIT 10.44
TIAA Appl. #881
M - 000427300
FUTURE ADVANCE PROMISSORY NOTE
$619,048.12 Naples, Florida
Dated: July 1, 1997
FOR VALUE RECEIVED, ABR SPECTRUM LTD., and ABR PLYMOUTH PLAZA,
LTD., each a Florida limited partnership, having its principal
place of business at 4102B Quixote Boulevard, Tampa, Florida 33613
(collectively, "Borrower"), jointly and severally, promise to pay
to TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
("Lender"), a New York corporation, or order, at Lender's offices
at 730 Third Avenue, New York, New York 10017 or at such other
place as Lender designates in writing, the principal sum of SIX
HUNDRED NINETEEN THOUSAND FORTY-EIGHT AND 12/100 DOLLARS
($619,048.12) (the principal sum or so much of the principal sum as
may be advanced and outstanding from time to time, the
"Principal"), in lawful money of the United States of America, with
interest on the Principal from the date of this Promissory Note
(this "Note") through and including August 1, 2007 (the "Maturity
Date") at the fixed rate of eight and forty-six hundredths percent
(8.46%) per annum. (the "Fixed Interest Rate").
This Note is secured by, among other things, the Consolidated
Mortgage as this term is defined in that certain Assumption
Agreement and Consolidation, Renewal and Restatement of Mortgages
and Security Agreements and Assignments of Leases and Rents and
Spreader Agreement and Notice of Future Advance (the "Assumption
Agreement") executed by the parties currently herewith and recorded
(collectively the "Mortgage") the date of this Note made by
Borrower for the benefit of Lender as security for the Loan. All
capitalized terms not expressly defined in this Note will have the
definitions set forth in the Mortgage.
Section 1. Payments of Principal and Fixed Interest.
(a) Borrower will make monthly installment payments ("Debt
Service Payments") follows:
____________________
Documentary Stamps in the amount of $2,166.67 have been paid on the
Mortgage concurrently with the execution and delivery hereof.
(i) On July 1, 1997, a payment of accrued interest on
the Principal at the Fixed Interest Rate; and
(ii) On September 1, 1997 and on the first day of each
succeeding calendar month through and including July 1,
2007, payments in the amount of $_____________ Dollars
($4,971.09), each of which will be applied first to interest
on the Principal at the Fixed Interest Rate and then to the
Principal.
(b) On the Maturity Date, Borrower will pay the Principal in
full together with accrued interest at the Fixed Interest Rate and
all other amounts due under the Loan Documents.
Section 2. Prepayment Provisions.
(a) The following definitions apply:
"Discount Rate" means the yield on a U.S. Treasury issue
selected by Lender, as published in the Wall Street Journal,
two weeks prior to prepayment, having a maturity date
corresponding (or most closely corresponding, if not
identical) to the Maturity Date, and a coupon rate
corresponding (or most closely corresponding, if not
identical) to the Fixed Interest Rate.
"Default Discount Rate" means the Discount Rate less 300
basis points.
"Discounted Value" means the Discounted Value of a Note
Payment based on the following formula:
NP
(1 + R/12)n = Discounted Value
NP = Amount of Note Payment
R = Discount Rate or Default Discount Rate as
the case may be.
n = The number of months between the date of
prepayment and the scheduled date of the
Note Payment being discounted rounded to
the nearest integer.
"Note Payments" means (i) the scheduled Debt Service
Payments for the period from the date of prepayment through
the Maturity Date and (ii) the scheduled repayment of
Principal, if any, on the Maturity Date.
"Prepayment Date Principal" means the Principal on the date
of prepayment.
(b) This Note may not be prepaid in fall or in part before
July 1, 2002 (the "Lockout Expiration Date"). Commencing on the
Lockout Expiration Date, provided there is no Event of Default,
Borrower may prepay this Note in full, but not in part, on the
first day f any calendar month, upon 90 days prior notice to Lender
and upon payment in full of all amounts payable under the Loan
Documents (the "Monetary Obligations") which will include a payment
(the "Prepayment Premium") equal to the greater of (i) an amount
equal to the product of 2% times the Prepayment Date Principal and
(ii) the amount by which the urn of the Discounted Values of Note
Payments, calculated at the Discount Rate, exceeds the Prepayment
Date Principal. Provided there is no Event of Default, this Note
may be prepaid in full without payment of the Prepayment Premium
during the last 180 days of the Term. This Note may not be prepaid
without simultaneous prepayment in full of any other notes secured
by the Loan Documents.
(c) After an Event of Default and Acceleration or upon any
prepayment not permitted by the Loan Documents, any tender of
payment of the amount necessary to satisfy a11 or any part of the
Monetary Obligations, any decree of foreclosure, any statement of
the amount due at the time of foreclosure and any tender of payment
during any redemption period after foreclosure, will include an
amount (the "Evasion Premium") equal to the greater of (i) an
amount equal to the product of 2% plus 300 basis points times the
Prepayment Date Principal, and (ii) the amount by which the sum of
the Discounted Values of the Note Payments, calculated at the
Default Discount Rate, exceeds the Prepayment Date Principal.
(d) Borrower acknowledges that:
(i) a prepayment will cause damage to Lender;
(ii) the Evasion Premium is intended to compensate
Lender for the loss of its investment and the expense
incurred and time and effort associated with making the
Loan, which will not be fully repaid if the Loan is prepaid;
(iii) it will be extremely difficult and impractical to
ascertain the extent of Lender's damages caused by a
prepayment after an Event of Default or any other prepayment
not permitted by the Loan Documents; and
(iv) the Evasion Premium represents Lender and
Borrower's reasonable estimate of Lender's damages for the
prepayment and is not a penalty.
Section 3. Events of Default:
(a) It is an "Event of Default" under this Note:
(i) if Borrower fails to pay any amount due, as and
when required, under this Note or any other Loan Document
and the failure continues for a period of 5 days, provided
that if Borrower fails twice in any 12-month period to make
a Debt Service Payment, as and when required, then any
additional failure to make a Debt Service Payment, as and
when required, will be an immediate Event of Default without
any grace period; or
(ii) if an Event of Default occurs under any other
Loan Document.
(b) If an Event of Default occurs, Lender may declare all or
any portion of the Monetary Obligations immediately due and payable
("Acceleration") and exercise any of the other Remedies.
Section 4. Default Rate. Interest on the Principal will
accrue at the Default Interest Rate from the date an Event of
Default occurs.
Section 5. Late Charges.
(a) If Borrower fails to pay any Debt Service Payment when
due and the failure continues for a period of 5 days or more or
fails to pay any amount due under the Loan Documents on the
Maturity Date, Borrower agrees to pay to Lender an amount (a "Late
Charge") equal to five cents ($.05) for each one dollar ($1.00) of
the delinquent payment.
(b) Borrower acknowledges that:
(i) a delinquent payment will cause damage to Lender;
(ii) the Late Charge is intended to compensate Lender
for loss of use of the delinquent payment and the expense
incurred and time and effort associated with recovering the
delinquent payment;
(iii) it will be extremely difficult and impractical to
ascertain the extent of Lender's damages caused by the
delinquency; and
(iv) the Late Charge represents Lender and Borrower's
reasonable estimate of Lender's damages from the delinquency
and is not a penalty.
Section 6. Limitation of Liability. This Note is subject to
the limitations on liability set forth in the Article of the
Mortgage entitled "Limitation of Liability".
Section 7. WAIVERS. IN ADDITION TO THE WAIVERS SET FORTH IN
THE ARTICLE OF THE MORTGAGE ENTITLED "WAIVERS", BORROWER WAIVES
PRESENTMENT FOR PAYMENT, DEMAND, DISHONOR AND, EXCEPT AS EXPRESSLY
SET FORTH IN THE LOAN DOCUMENTS, NOTICE OF ANY OF THE
FOREGOING. BORROWER FURTHER WAIVES ANY PROTEST, LACK OF DILIGENCE
OR DELAY IN COLLECTION OF THE MONETARY OBLIGATIONS OR ENFORCEMENT
OF THE LOAN DOCUMENTS. BORROWER AND ALL INDORSERS, SURETIES AND
GUARANTORS OF THE OBLIGATIONS CONSENT TO ANY EXTENSIONS OF TIME,
RENEWALS, WAIVERS AND MODIFICATIONS THAT LENDER MAY GRANT WITH
RESPECT TO THE OBLIGATIONS AND TO THE RELEASE OF ANY SECURITY FOR
THIS NOTE AND AGREE THAT ADDITIONAL MAKERS MAY BECOME PARTIES TO
THIS NOTE AND ADDITIONAL INDORSERS, GUARANTORS OR SURETIES MAY BE
ADDED WITHOUT NOTICE AND WITHOUT AFFECTING THE LIABILITY OF THE
ORIGINAL MAKER OR ANY ORIGINAL INDORSER, SURETY OR GUARANTOR.
Section 8. Commercial Loan. The Loan is made for the purpose
of carrying on a business or commercial activity or acquiring real
or personal property as an investment or carrying on an investment
activity and not for personal or household purposes.
Section 9. Usury Limitations. Borrower and Lender intend to
comply with all Laws with respect to the charging and receiving of
interest. Any amounts charged or received by Lender for the use or
forbearance of the Principal to the extent permitted by Law, will
be amortized and spread throughout the Term until payment in full
so that the rate or amount of interest charged or received by
Lender on account the Principal does not exceed the Maximum
Interest Rate. If any amount charged or received under the Loan
Documents that is deemed to be interest is determined to be in
excess of the amount permitted to be charged or received at the
Maximum Interest Rate, the excess will be deemed to be a prepayment
of Principal when paid, without premium, and any portion of the
excess not capable of being so applied will be refunded to
Borrower. If during the Term the Maximum Interest Rate, if any, is
eliminated, then for purposes of the Loan, there will be no Maximum
Interest Rate.
Section 10. Applicable Law. This Note is governed by and
will be construed in accordance with the Laws of the State of New
York, without regard to conflict of law provisions.
Section 11. Time of the Essence. Time is of the essence with
respect to the payment and performance of the Obligations.
Section 12. Cross-Default. A default under any other note
now or hereafter secured by the Loan Documents or under any loan
document related to such other note constitutes a default under
this Note and under the other Loan Documents. When the default
under the other note constitutes an Event of Default under that
note or the related loan document, an Event of Default also will
exist under this Note and the other Loan Documents.
Section 13. Construction. Unless expressly provided
otherwise in this Note, this Note will be construed in accordance
with the Exhibit attached to the Mortgage entitled "Rules of
Construction".
Section 14. Mortgage Provisions Incorporated. To the extent
not otherwise set forth in this Note, the provisions of the
Articles of the Mortgage titled "Expenses and Duty to
Defend", "Waivers", "Notices", and "Miscellaneous" are applicable
to this Note and deemed incorporated by reference as if set forth
at length in this Note.
Section 15. Joint and Several Liability; Successors and
Assigns. If Maker consists of more than one entity, the
obligations and liabilities of each such entity will be joint and
several. This Note binds Borrower and its successors, assigns,
heirs, administrators, executors, agents and representatives and
inures to the benefit of Lender and its successors, assigns, heirs,
administrators, executors, agents and representatives.
Section 16. Absolute Obligation. Except for the Section of
this Note entitled "Limitation of Liability", no reference in this
Note to the other Loan Documents and no other provision of this
Note or of the other Loan Documents will impair or alter the
obligation of Borrower, which is absolute and unconditional, to pay
the Principal, interest at the Fixed Interest Rate and any other
amounts due and payable under this Note, as and when required.
IN WITNESS WHEREOF, Borrower has executed and delivered this
Note as of the date first set forth above.
ABR SPECTRUM, LTD., a Florida limited
partnership
By: /s/ Robert M. Reed, II
Robert M. Reed, II
Managing General Partner
ABR PLYMOUTH PLAZA, LTD., a Florida
limited partnership
By: /s/ Robert M. Reed, II
Robert M. Reed, II
Managing General Partner
EXHIBIT 10.45
ASSUMPTION AGREEMENT AND CONSOLIDATION, RENEWAL
AND RESTATEMENT OF MORTGAGES AND SECURITY AGREEMENTS AND
ASSIGNMENTS OF LEASES AND RENTS AND SPREADER AGREEMENT AND
NOTICE OF FUTURE ADVANCE
NOTE TO RECORDER:
INTANGIBLE TAXES WERE PAID UPON THE RECORDATION OF EACH OF THE
TW0 MORTGAGES DESCRIBED IN THIS AGREEMENT WHICH ARE HEREBY
BEING CONSOLIDATED, SPREAD, RENEWED AND RESTATED. ON THIS
AGREEMENT, INTANGIBLE TAXES IN THE AMOUNT OF $1,238.10 ARE BEING
PAID ON THE AMOUNT OF THE FUTURE ADVANCE OF $619,048.12 THAT IS
SECURED BY THE CONSOLIDATED MORTGAGE. DOCUMENTARY STAMP
TAXES IN THE AGGREGATE AMOUNT OF $35,808.33 ARE DUE ON THE
CONSOLIDATED NOTE IN THE PRINCIPAL AMOUNT OF $10,230,951.88 AND
DOCUMENTARY STAMPS ON THE FUTURE ADVANCE NOTE IN THE AMOUNT OF
$2,166.67 IN THE PRINCIPAL AMOUNT OF $619,048.12. PURSUANT TO
SECTION 201.09 OF THE FLORIDA STATUTES AND RULE 12B-4.013(33),
FLORIDA ADMINISTRATIVE CODE, NO ADDITIONAL DOCUMENTARY STAMPS
INTANGIBLE TAXES ARE DUE ON THE RENEWAL NOTE IN THE AMOUNT OF
$10,850,000.00.