UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
CURRENT REPORT
FORM 8-K/A
Amendment No. 2
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
(State or other jurisdiction of incorporation)
0-21455
(Commission File Number)
39-1518732
(IRS Employer 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 audited and
compiled financial information that was not available as of the
original filing date, and certain other exhibits not
previously filed.
ITEM 7: Financial Statements and Exhibits.
(a) Financial Statements of business acquired.
The following required financial statements are filed herewith:
Statement of Operating Income and Certain Expenses of ABR Plymouth
Plaza for the year ended December 31, 2001.
Statement of Operating Income and Certain Expenses of ABR Plymouth
Plaza for the six months ended June 30, 2002.
Statement of Operating Income and Certain Expenses of ABR Spectrum
for the year ended December 31, 2001.
Statement of Operating Income and Certain Expenses of ABR Spectrum
for the six months ended June 30, 2002.
(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: August 29, 2003 By:/s/ Jeffrey Keierleber
Jeffrey Keierleber,
Principal Executive Officer and
Principal Financial and Accounting Officer
of the Registrant
(Duly authorized to sign on behalf of the Registrant)
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
(the "Registrant")
(Commission File No. 0-21455)
EXHIBIT INDEX
FORM 8-K CURRENT REPORT
Date of Report: July 30, 2002
Exhibit
Number Description Dated Filed Herewith
99.7 ABR Plymouth Plaza Statement of Operating
Income Expenses for the year ended
December 31, 2001. 12/31/01 X
99.8 ABR Plymouth Plaza Statement of Operating
Income Expenses for the six months ended
June 30, 2002. 6/30/02 X
99.9 ABR Spectrum Statement of Operating Income
Expenses for the year ended
December 31, 2001. 12/31/01 X
99.10 ABR Spectrum Statement of Operating Income
Expenses for the six months ended 6/30/02 X
June 30, 2002.
10.46 Assignment of Note, Mortgage, and
Loan Documents 8/27/02 X
10.47 Allonge to Note 8/27/02 X
10.48 Bill of Sale 7/30/02 X
10.49 Assignment of Warranties and
Assumption Agreement 7/30/02 X
10.50 Assignment of Leases and Security
Deposit and Assumption Agreement 7/30/02 X
10.51 Cross-Easement Agreement 7/30/02 X
10.52 Signage Easement Agreement 7/30/02 X
10.53 Parking Easement Agreement 7/30/02 X
10.54 Mortgage Deed and Security Agreement 11/23/92 X
10.55 Allonge to Note 10/30/92 X
10.56 Mortgage X
10.57 Assignment of Mortgage and Other Loan
Documents 11/3/94 X
10.58 Assignment of Mortgage and Other Loan
Documents 10/31/95 X
10.59 Promissory Note 11/23/92 X
10.60 Environmental Indemnity (Plymouth) 7/1/97 X
10.61 Environmental Indemnity (Spectrum) 7/1/97 X
10.62 Imposition Reserve Agreement 7/1/97 X
10.63 Escrow Agreement 7/30/02 X
10.64 Assignment of Leases and Rents 6/28/97 X
10.65 Escrow Agreement 7/30/02 X
EXHIBIT NUMBER 99.7
ABR PLYMOUTH PLAZA
STATEMENT OF OPERATING INCOME
AND CERTAIN EXPENSES
DECEMBER 31, 2001
Letterhead of
Price Donoghue Ridenour
Certified Public Accountants & Business Consultants
INDEPENDENT AUDITORS' REPORT
General Partner
Decade Companies Income Properties,
a Limited Partnership
We have audited the accompanying statement of operating income and
certain expenses of ABR Plymouth Plaza (an office building) for the
year ended December 31, 2001. This financial statement is the
responsibility of the Company's management. Our responsibility is to
express an opinion on this financial statement based on our audit.
We conducted our audit in accordance with U.S. generally accepted
auditing standards. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial
statement is free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statement. An audit also includes
assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
As described in Note A, this financial statement was prepared in
conformity with the accounting practices prescribed or permitted by
Regulation S-X of the Securities and Exchange Commission, which is a
comprehensive basis of accounting other than U.S. generally accepted
accounting principles.
In our opinion, the financial statement referred to above presents
fairly, in all material respects, the results of operations of ABR
Plymouth Plaza for the year ended December 31, 2001 on the basis of
accounting described in Note A.
This report is intended solely for the information and use of the
board of directors and management of Decade Companies Income
Properties, a Limited Partnership and the Securities and Exchange
Commission and is not intended to be and should not be used by anyone
other than these specified parties.
/s/ Price Donoghue Ridenour
Clearwater, Florida
July 28, 2003
ABR PLYMOUTH PLAZA
STATEMENT OF OPERATING INCOME AND CERTAIN EXPENSES
YEAR ENDED DECEMBER 31, 2001
Revenue $ 1,027,749
Certain operating expenses 453,632
Excess of operating revenues over certain expenses $574,117
See accompanying notes and accountants' report
ABR PLYMOUTH PLAZA
NOTES TO FINANCIAL STATEMENT
DECEMBER 31, 2001
ABR Plymouth Plaza ("Plymouth") is a five-story, approximately 57,238
square foot office building, which includes approximately 53,573
rentable square feet, and a 354-car, five-level parking garage of
approximately 106,424 square feet. Plymouth is located at 26750 U.S.
Highway 19 North in Clearwater, Pinellas County, Florida. During the
period 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.
Note A Summary of Significant Accounting Policies
1. Basis of Presentation
The accompanying statement of operating income and certain expenses
was prepared from financial information submitted to DCIP by the
former owner, ABR Plymouth Plaza Ltd., a Florida limited partnership.
The accompanying statement of operating income and certain expenses
has been prepared in conformity with the accounting practices
prescribed or permitted by Regulation S-X of the Securities and
Exchange Commission, which is a comprehensive basis of accounting
other than U.S. generally accepted accounting principles.
The accompanying statement of operating income and certain expenses
reflects 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, interest income and
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 period covered, and
may not be indicative of future results of operations.
Note B Concentration of Credit Risk
Plymouth contracts with a limited number of lessees and its credit
risk is dependent upon the loss of a significant lessee as well as the
local commercial real estate market.
EXHIBIT NUMBER 99.8
ABR PLYMOUTH PLAZA
STATEMENT OF OPERATING INCOME
AND CERTAIN EXPENSES
JUNE 30, 2002
Letterhead of
Price Donoghue Ridenour
Certified Public Accountants & Business Consultants
General Partner
Decade Companies Income Properties,
a Limited Partnership
We have compiled the accompanying statement of operating income and
certain expenses of ABR Plymouth Plaza (an office building) for the
six months ended June 30, 2002 included in the accompanying prescribed
form in accordance with Statements on Standards for Accounting and
Review Services issued by the American Institute of Certified Public
Accountants.
Our compilation was limited to presenting in the form prescribed by
Regulation S-X of the Securities and Exchange Commission information
that is the representation of management. We have not audited or
reviewed the accompanying financial statement and, accordingly, do not
express an opinion or any other form of assurance on it.
As described in Note A, this financial statement (including related
disclosures) is presented in accordance with the requirements of
Regulation S-X of the Securities and Exchange Commission, which differ
from U.S. generally accepted accounting principles. Accordingly, this
financial statement is not designed for those who are not informed
about such differences.
/s/ Price Donoghue Ridenour
Clearwater, Florida
August 6, 2003
ABR PLYMOUTH PLAZA
STATEMENT OF OPERATING INCOME AND CERTAIN EXPENSES
SIX MONTHS ENDED JUNE 30, 2002
Revenue $ 439,662
Certain operating expenses 178,082
Excess of operating revenues over certain expenses $261,580
See accompanying notes and accountants' report
ABR PLYMOUTH PLAZA
NOTES TO FINANCIAL STATEMENT
JUNE 30, 2002
ABR Plymouth Plaza ("Plymouth") is a five-story, approximately 57,238
square foot office building, which includes approximately 53,573
rentable square feet, and a 354-car, five-level parking garage of
approximately 106,424 square feet. Plymouth is located at 26750 U.S.
Highway 19 North in Clearwater, Pinellas County, Florida. During the
period 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.
Note A Summary of Significant Accounting Policies
1. Basis of Presentation
The accompanying statement of operating income and certain expenses
was prepared from financial information submitted to DCIP by the
former owner, ABR Plymouth Plaza Ltd., a Florida limited partnership.
The accompanying statement of operating income and certain expenses
has been prepared in conformity with the accounting practices
prescribed or permitted by Regulation S-X of the Securities and
Exchange Commission, which is a comprehensive basis of accounting
other than U.S. generally accepted accounting principles.
The accompanying statement of operating income and certain expenses
reflects 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, interest income and
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.
Note B Concentration of Credit Risk
Plymouth contracts with a limited number of lessees and its credit
risk is dependent upon the loss of a significant lessee as well as the
local commercial real estate market.
EXHIBIT NUMBER 99.9
ABR SPECTRUM
STATEMENT OF OPERATING INCOME
AND CERTAIN EXPENSES
DECEMBER 31, 2001
Letterhead of
Price Donoghue Ridenour
Certified Public Accountants & Business Consultants
INDEPENDENT AUDITORS' REPORT
General Partner
Decade Companies Income Properties,
a Limited Partnership
We have audited the accompanying statement of operating income and
certain expenses of ABR Spectrum (an office building) for the year
ended December 31, 2001. This financial statement is the
responsibility of the Company's management. Our responsibility is to
express an opinion on this financial statement based on our audit.
We conducted our audit in accordance with U.S. generally accepted
auditing standards. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial
statement is free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statement. An audit also includes
assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
As described in Note A, this financial statement was prepared in
conformity with the accounting practices prescribed or permitted by
Regulation S-X of the Securities and Exchange Commission, which is a
comprehensive basis of accounting other than U.S. generally accepted
accounting principles.
In our opinion, the financial statement referred to above presents
fairly, in all material respects, the results of operations of ABR
Spectrum for the year ended December 31, 2001 on the basis of
accounting described in Note A.
This report is intended solely for the information and use of the
board of directors and management of Decade Companies Income
Properties, a Limited Partnership and the Securities and Exchange
Commission and is not intended to be and should not be used by anyone
other than these specified parties.
/s/ Price Donoghue Ridenour
Clearwater, Florida
July 28, 2003
ABR SPECTRUM
STATEMENT OF OPERATING INCOME AND CERTAIN EXPENSES
YEAR ENDED DECEMBER 31, 2001
Revenue $ 2,318,105
Certain operating expenses 866,799
Excess of operating revenues over certain expenses $1,451,306
See accompanying notes and accountants' report
ABR SPECTRUM
NOTES TO FINANCIAL STATEMENT
DECEMBER 31, 2001
ABR Spectrum ("Spectrum") is a two-story, approximately 125,098 square
foot atrium-style office building, which includes approximately
112,223 rentable square feet. Spectrum is located at 900 Winderly
Place in the Maitland Center office park in Maitland, Orange County,
Florida. During the period 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.
Note A Summary of Significant Accounting Policies
1. Basis of Presentation
The accompanying statement of operating income and certain expenses
was prepared from financial information submitted to DCIP by the
former owner, ABR Spectrum Ltd., a Florida limited partnership.
The accompanying statement of operating income and certain expenses
has been prepared in conformity with the accounting practices
prescribed or permitted by Regulation S-X of the Securities and
Exchange Commission, which is a comprehensive basis of accounting
other than U.S. generally accepted accounting principles.
The accompanying statement of operating income and certain expenses
reflects 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, interest income and
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 period covered, and
may not be indicative of future results of operations.
Note B Concentration of Credit Risk
Spectrum contracts with a limited number of lessees and its credit
risk is dependent upon the loss of a significant lessee as well as the
local commercial real estate market.
EXHIBIT NUMBER 99.10
ABR SPECTRUM
STATEMENT OF OPERATING INCOME
AND CERTAIN EXPENSES
JUNE 30, 2002
Letterhead of
Price Donoghue Ridenour
Certified Public Accountants & Business Consultants
General Partner
Decade Companies Income Properties,
a Limited Partnership
We have compiled the accompanying statement of operating income and
certain expenses of ABR Spectrum (an office building) for the six
months ended June 30, 2002 included in the accompanying prescribed
form in accordance with Statements on Standards for Accounting and
Review Services issued by the American Institute of Certified Public
Accountants.
Our compilation was limited to presenting in the form prescribed by
Regulation S-X of the Securities and Exchange Commission information
that is the representation of management. We have not audited or
reviewed the accompanying financial statement and, accordingly, do not
express an opinion or any other form of assurance on it.
As described in Note A, this financial statement (including related
disclosures) is presented in accordance with the requirements of
Regulation S-X of the Securities and Exchange Commission, which differ
from U.S. generally accepted accounting principles. Accordingly, this
financial statement is not designed for those who are not informed
about such differences.
/s/ Price Donoghue Ridenour
Clearwater, Florida
August 6, 2003
ABR SPECTRUM
STATEMENT OF OPERATING INCOME AND CERTAIN EXPENSES
SIX MONTHS ENDED JUNE 30, 2002
Revenue $ 1,119,980
Certain operating expenses 327,261
Excess of operating revenues over certain expenses $792,719
See accompanying notes and accountants' report
ABR SPECTRUM
NOTES TO FINANCIAL STATEMENT
JUNE 30, 2002
ABR Spectrum ("Spectrum") is a two-story, approximately 125,098 square
foot atrium-style office building, which includes approximately
112,223 rentable square feet. Spectrum is located at 900 Winderly
Place in the Maitland Center office park in Maitland, Orange County,
Florida. During the period 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.
Note A Summary of Significant Accounting Policies
1. Basis of Presentation
The accompanying statement of operating income and certain expenses
was prepared from financial information submitted to DCIP by the
former owner, ABR Spectrum Ltd., a Florida limited partnership.
The accompanying statement of operating income and certain expenses
has been prepared in conformity with the accounting practices
prescribed or permitted by Regulation S-X of the Securities and
Exchange Commission, which is a comprehensive basis of accounting
other than U.S. generally accepted accounting principles.
The accompanying statement of operating income and certain expenses
reflects 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, interest income and
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 period covered, and
may not be indicative of future results of operations.
Note B Concentration of Credit Risk
Spectrum contracts with a limited number of lessees and its credit
risk is dependent upon the loss of a significant lessee as well as the
local commercial real estate market.
EXHIBIT NUMBER 10.46
This Instrument Prepared By:
Jeffrey C. Shannon, Esq.
Fowler White Boggs Banker P.A.
501 E. Kennedy Boulevard
Suite 1700
Tampa, Florida 33602
[Space Above for Recorder's Use]
ASSIGNMENT OF NOTE, MORTGAGE, AND LOAN DOCUMENTS
This Assignment of Note, Mortgage and Loan Documents (the
"Assignment") is executed as of August 27 , 2002, by TEACHERS
INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York
corporation (the "Assignor"), to DECADE MORTGAGE LOAN PARTNERS,
L.L.C., a Wisconsin limited liability company (the "Assignee"),
having an office at Riverwoods Corporate Center, N19 W24130
Riverwood Drive, Suite 100, Waukesha, Wisconsin 53188.
BACKGROUND
Assignor is the owner and holder of the following documents or
instruments (collectively, the "Loan Documents"):
1. Purchase Money Promissory Note (the "First Union Note") dated
October 30, 1992, in the original principal sum of $8,048,000
executed by ABR Spectrum, Ltd., a Florida limited partnership
("Spectrum"), in favor of First Union National Bank of Florida, a
national banking association ("First Union"), as assigned to
Assignor by that certain Assignment of Note and Mortgage dated July
1, 1997, recorded in Official Records Book 5294, Page 908 of the
Public Records of Orange County, Florida (the "Assignment of First
Union Note and Mortgage");
2. Purchase Money Mortgage, Security Agreement, Financing
Statement and Fixture Filing, dated October 30,1992, executed by
Spectrum in favor of First Union, and recorded in Official Records
Book 4483, at Page 2903 of the Public Records of Orange County,
Florida (the "First Union Mortgage"), as assigned to Assignor
pursuant to the Assignment of First Union Note and Mortgage;
3. Assignment of Rents and Leases dated October 30, 1992,
executed by Spectrum in favor of First Union, and recorded in
Official Records Book 4483, Page 2928 of the Public Records of
Orange County, Florida (the "First Union Assignment"), as assigned
to Assignor pursuant to the Assignment of First Union Note and
Mortgage;
4. UCC-1 Financing Statement in favor of First Union recorded in
Official Records Book 4483, Page 2938 of the Public Records of
Orange County, Florida (the "First Union Financing Statement"), as
assigned to Assignor pursuant to the Assignment of First Union Note
and Mortgage;
5. Promissory Note (the "Chase Note") dated November 23,1992, in
the original principal sum of $2,896,ooo executed by ABR Plymouth,
Ltd., a Florida limited partnership ("Plymouth"), in favor of The
Chase Manhattan Bank, N.A., a national banking association
("Chase"), as assigned to Lennar Northeast Limited Partnership, a
Delaware limited partnership ("Lennar") by that certain Assignment
of Mortgage and other Loan Documents dated November 3,1994,
recorded in Official Records Book 8909, Page 683 of the Public
Records of Pinellas County, Florida (the "Lennar Assignment"), and
as assigned to Bank Midwest, N.A., a national banking association
("Bank Midwest") by that certain Assignment of Mortgage and Other
Loan Documents dated October 31,1995, recorded in Official Records
Book 9155, Page 612 of the Public Records of Pinellas County,
Florida (the "Bank Midwest Assignment"), and as assigned to
Assignor by that certain Assignment of Note, Mortgage, and Leases
and Rents dated June 30, 1997, recorded in Official Records Book
9788, Page 831 of the Public Records of Pinellas County, Florida
(the "Assignment of Chase Note and Mortgage");
6. Mortgage Deed and Security Agreement dated November 23, 1992,
executed by Plymouth in favor of Chase, and recorded in Official
Records Book 8108, at Page 2182 of the Public Records of Pinellas
County, Florida (the "Chase Mortgage"), as assigned to Lennar
pursuant to the Lennar Assignment, and as assigned to Bank Midwest
pursuant to the Bank Midwest Assignment, and as assigned to
Assignor pursuant to the Assignment of Chase Note and Mortgage;
7. Collateral Assignment of Leases, Rents and Contract Rights
dated November 23, 1992, executed by Plymouth in favor of Chase,
and recorded in Official Records Book 8108, at Page 2202 of the
Public Records of Pinellas County, Florida (the "Chase Assignment",
the First Union Assignment and Chase Assignment shall hereinafter
be collectively referred to as the "Assignment of Rents")), as
assigned to Lennar pursuant to the Lennar Assignment, and as
assigned to Bank Midwest pursuant to the Bank Midwest Assignment,
and as assigned to Assignor pursuant to the Assignment of Chase
Note and Mortgage;
8. UCC-1 Financing Statement in favor of Chase recorded in
Official Records Book 8108, Page 2214 of the Public Records of
Pinellas County, Florida (the "Chase Financing Statement", the
First Union Financing Statement and Chase Financing Statement shall
hereinafter be collectively referred to as the "Financing
Statements"), as assigned to Lennar pursuant to the Lennar
Assignment, and as assigned to Bank Midwest pursuant to the Bank
Midwest Assignment, and as assigned to Assignor pursuant to the
Assignment of Chase Note and Mortgage;
9. Consolidation Note effective July 1, 1997 in the amount of
$10,230,952.88 made by Spectrum and Plymouth (collectively, the
"Borrower") in favor of Assignor (the "Consolidation Note");
10. Future Advance Note effective July 1, 1997 in the amount of
$619,048.12 made by Borrower in favor of Assignor (the "Future
Advance Note");
11. Renewal Promissory Note dated July 1, 1997 in the amount of
$10,850,000.00 made by Borrower in favor of Assignor (the "Renewal
Note", the First Union Note, Chase Note, Consolidation Note, Future
Advance Note and Renewal Note shall hereinafter be collectively
referred to as the "Note");
12. 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, executed by Borrower in favor of
Assignor, and recorded in Official Records Book 5294, Page 912 of
the Public Records of Orange County, Florida, and recorded in
Official Records Book 9788, Page 838 of the Public Records of
Pinellas County, Florida (the "Consolidated Mortgage", the First
Union Mortgage, Chase Mortgage and Consolidated Mortgage shall
hereinafter be collectively referred to as the "Mortgage"); and
13. Any and all other documents held by Assignor executed and
delivered in conjunction with the Note.
For valuable consideration granted by Assignee to Assignor, the
receipt of which is hereby acknowledged, Assignor agrees to
absolutely assign the Note, Mortgage, Assignment of Rents, and
Financing Statements to Assignee on the terms and conditions more
particularly set forth below.
OPERATIVE PROVISIONS
1. Assignment of Note. Mortgage, Assignment of Rents, and
Financing Statements. Assignor hereby unconditionally grants,
transfers, and assigns to Assignee, all of Assignor's right, title
and interest in the Note, Mortgage, Assignment of Rents, and
Financing Statements, including all of Assignor's right to receive
payments of principal and interest under the Note, to have and to
hold the same unto the Assignee, its successors and assigns,
forever. Concurrently herewith, Assignor has endorsed to Assignee,
without recourse, the Note.
2. All Other Loan Documents. Assignor hereby unconditionally
grants, transfers, and assigns to Assignee, all of Assignor's
right, title and interest in all other documents or agreements
entered into by Borrower in connection with or related to the loan
evidenced by the Note (the "Loan") and secured by the Mortgage,
including, without limitation, any letters of credit, to have and
to hold the same unto the Assignee, its successors and assigns,
forever.
3. No Representations or Warranties. This Assignment is being
made without recourse and, except for Assignor's representations
that (i) it is the owner of the Loan Documents as of the date
hereof; (ii) it has good right, power and authority to assign the
Loan Documents and the undersigned is fully authorized to execute
this instrument on behalf of the Assignor; (iii) it has not
executed any prior assignment or pledge of any of the Loan
Documents; and (iv) the outstanding principal balance under the
Note as of this date is $10,079,063.71; without any representation
or warranty of any kind, including, but not limited to, the
enforceability or collectibility of the Note, Mortgage, Assignment
of Rents, Financing Statements and other Loan Documents, or
compliance with any applicable laws or regulations. By its
acceptance of this Assignment, Assignee acknowledges and agrees
that it is not relying presently and shall not be entitled to rely
in the future on any representations or warranties by Assignor, and
hereby irrevocably releases and waives any and all rights to any
claims, damages, or causes of action against Assignor.
4. Successors and Assigns. This Assignment shall inure to the
benefit of the successors and assigns of Assignor and Assignee, and
shall be binding upon the successors and assigns of Assignor and
Assignee.
(Remainder of page intentionally blank)
IN WITNESS WHEREOF, the Assignor has caused these presents to be
executed in
its name and its seal to be affixed, by its proper officer
thereunto duly authorized, this 27th day of August, 2002.
Signed, sealed and delivered
in the presence of TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA,
a New York corporation
Print name: /s/ Sangeeta Kumar By: /s/ William A. Welcher
Name: William A. Welcher
Print name: /s/ Jasmine Rosario
Title: Associate Director
Address: 730 Third Avenue
New York, New York 10017
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 27th day
of August, 2002, by William A. Welcher, as Associate Director of
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York
corporation, on behalf of said corporation. He/she is personally
known to me or produced a driver's license as identification.
/s/ Anthony L. Grimaldi
Notary Public, State of
at Large
Print name:
Commission No., if any:
(SEAL) Anthony L. Grimaldi
Notary Public, State of New York
No. 4911148
Qualified in Westchester County
My Commission Expires: Commission Expires
October 13, 2003
EXHIBIT 10.47
ALLONGE TO NOTE
Pay to the order of DECADE MORTGAGE LOAN PARTNERS, L.L.C., a
Wisconsin limited liability company, "without recourse"
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York
corporation
By: /s/ William A. Welcher
Name: William A. Welcher
Title: Associate Director
Dated: August 27, 2002
THIS ALLONGE HAS BEEN EXECUTED IN CONNECTION WITH AN ASSIGNMENT OF
that certain Renewal Promissory Note dated July 1, 1997, in the
amount of Ten Million Eight Hundred Fifty Thousand and No/100
Dollars ($10,850,000.00) executed by ABR Spectrum, Ltd., a Florida
limited partnership, and ABR Plymouth, Ltd., a Florida limited
partnership, and payable to TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New York corporation (said note
hereinafter called "Note"). THIS ORIGINAL ALLONGE SHALL BE
PERMANENTLY AFFIXED TO THAT SAID NOTE.
EXHIBIT NUMBER 10.48
BILL OF SALE
ABR PLYMOUTH PLAZA, LTD. and ABR SPECTRUM, LTD., both entities
being Florida limited partnerships ("Seller"), in consideration of
the sum of Ten Dollars ($10.00) and other good and valuable
consideration received, hereby, on this 30th day of July, 2002,
sells to DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP,
a Wisconsin limited partnership ("Buyer"), the personal property
(the "Personal Property") described as:
Any and all apparatus, equipment, appliances, systems, tools,
machineries, fixtures, inventory, furniture or furnishings of any
kind in the possession of and owned by Seller, used in the
operation or occupancy of the premises described on Exhibit "A" and
Exhibit "A-1" attached hereto and incorporated herein by virtue of
this reference; which personalty is more particularly described on
Exhibit "B" attached hereto and incorporated herein by virtue of
this reference,
and warrants that the Personal Property is free of all
encumbrances, that good title to and right to sell that Personal
Property is vested in Seller, and that Seller will defend the title
against the lawful claims of all persons.
Signed, sealed and delivered ASSIGNOR:
in the presence of:
ABR PLYMOUTH PLAZA, LTD., a Florida
/s/ Leo Salvatori limited partnership
Witness No. 1 Signature
By: (Corporate Seal)
REED DEVELOPMENT COMPANY,
Leo J. Salvatori a Florida corporation, as General Partner
Witness No. 1 Printed Name
/s/ Debra K. Blackwell By:
Witness No. 2 Signature Robert M. Reed, II, as
President
Debra K. Blackwell
Witness No. 2 Printed Name
ABR SPECTRUM, LTD., a Florida
limited partnership
/s/ Leo J. Salvatori By: (Corporate Seal)
Witness No. 1 Signature REED DEVELOPMENT COMPANY,
A Florida corporation, as General Partner
Leo J. Salvatori
Witness No. 1 Printed Name
By:
Robert M. Reed, II, as
President
/s/ Debra K. Blackwell
Witness No. 2 Signature
Debra K. Blackwell
Witness No. 2 Printed Name
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this 30th day
of July, 2002 by Robert M. Reed II, as President of Reed Develop o
y, a Florida corporation, as General Partner on behalf of both ABR
PLYMOUTH PLAZA, LTD. and ABR SPECTRUM, LTD., both Florida limited
partnerships, who is personally known to me.
/s/ Leo J. Salvatori
Notary Public
TYPED, PRINTED OR STAMPED NAME OF NOTARY PUBLIC
My Commission Expires:
Leo J. Salvatori
My Commission # CC 967892
Expires: November 28, 2004
Bonded Thru Notary Public Underwriters
EXHIBIT A
LEGAL DESCRIPTION: PARCEL 1
A TRACT OF LAND LYING IN SECTION 30, TOWNSHIP 28 SOUTH, RANGE 16
EAST, CLEARWATER. PINELLAS COUNTY, FLORIDA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE CENTER OF SAID SECTION 30: THENCE S.00'12'15'E, FOR
50.00 FEET. ALONG THE CENTERLINE OF U.S. HIGHWAY 19; THENCE
N.89'55'13'W, FOR 100.00 FEET, TO THE INTERSECTION OF THE SOUTH
RIGHT-OF-WAY LINE OF S.R. 580, AND THE WEST RIGHT-OF-WAY LINE OF
U.S. HIGHWAY 19 (A 200 FOOT RIGHT-OF-WAY), THENCE ALONG SAID
RIGHT-OF-WAY THE FOLLOWING THREE (3) COURSES: 1) S,00'12'15'E, FOR
150.49 FEET, TO A POINT OF CURVATURE OF A CURVE CONCAVE TO THE
NORTHEAST; 2) THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE
HAVING A RADIUS OF 2964.93 FEET, CENTRAL ANGLE OF 21'50'27', AND
ARC LENGTH OF 1130.21 FEET, AND A CHORD BEARING S.11'07'28'E, FOR
1123.38 FEET TO THE POINT OF BEGINNING: 3) THENCE CONTINUE
SOUTHEASTERLY ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF
2964.93 FEET, CENTRAL ANGLE OF 04'59'40', AN ARC LENGTH Of 258.46
FEET, AND A CHORD BEARING S.24'32'32'E. FOR 258.37 FEET; THENCE,
LEAVING SAID RIGHT-OF-WAY LINE S.53'51'47'W, FOR 93.06 FEET; THENCE
N.36'08'28'W, FOR 111.50 FEET; THENCE S.53'51'32'W, FOR 229,00
FEET; THENCE N.36'08'28'W,' FOR 18.50 FEET; THENCE S.53'51'32'W,
FOR 201,65 FEET; THENCE N.36'08'23'W, FOR 160.00 FEET: THENCE
S.53'51'32'W, FOR 210.82 FEET, TO A POINT ON THE EASTERLY
RIGHT-OF-WAY LINE OF ENTERPRISE ROAD; THENCE ALONG SAID
RIGHT-OF-WAY LINE THE FOLLOWING THREE COURSES: 1) N,5519'05'W, FOR
307.28 FEET, TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE
NORTHEAST; 2) THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE
HANNC A RADIUS OF 270.00 FEET. CENTRAL ANGLE OF 45'19'50', AN ARC
LENGTH OF 213.62 FEET, AND A CHORD BEARING N.32'39'10'W, FOR 208.09
FEET TO THE POINT OF COMPOUND CURVATURE OF OF CURVE CONCAVE TO THE
NORTHEAST; 3) THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE
HAVING A RADIUS OF 835.00 FEET, A CENTRAL ANGLE OF 00'24'40', AN
ARC LENGTH OF 5.99 FEET AND A CHORD BEARING N.09'46'55'W, FOR 5.99
FEET TO A POINT ON THE SOUTH LINE OF THE PLAT OF DUNEDIN INDUSTRIAL
PARK, AS RECORDED IN PLAT BOOK 64, PACE 76, OF THE PUBLIC RECORDS
OF PINELLAS COUNTY, FLORIDA; THENCE ALONG THE SOUTHERLY AND
EASTERLY LINES OF SAID PLAT THE FOLLOWING TWO (2) COURSES: 1)
S.89'55'13'E, FOR 6.87 FEET; 2) THENCE N.00'04'47'E, FOR 167,02
FEET. THENCE, LEAVING SAID PLAT, S,89'55'13'E, FOR 220.00 FEET.
THENCE S,00'04'47'W, FOR 135.00 FEET; THENCE S.89-55-13-E, FOR
568.72 FEET; THENCE N.00'04'47'E, FOR 10.00 FEET; THENCE
S.36'56'12'E, FOR 70.43 FEET TO THE POINT OF CURVATURE OF A CURVE
CONCAVE TO THE NORTHWEST; THENCE NORTHEASTERLY ALONG THE ARC OF
SAID CURVE, HAVING A RADIUS OF 47.75 FEET, A CENTRAL ANGLE OF
38'13'11', AN ARC LENGTH OF 31.85 FEET AND A CHORD BEARING
N.77'38'48'E, FOR 31.26 FEET TO A POINT OF TANGENCY; THENCE
N,58'32'12'E, FOR 121.19 FEET TO THE POINT OF CURVATURE OF A CURVE
CONCAVE TO THE SOUTHEAST; THENCE NORTHEASTERLY ALONG THE ARC OF
SAID CURVE HAVING A RADIUS OF 187,16 FEET, CENTRAL ANGLE OF
09'05'08', AN ARC LENGTH OF 29.68 FEET, AND A CHORD BEARING
N.63'04'46'E, FOR 29.65 FEET TO A POINT OF TANGENCY; THENCE
N.67'37'20'E. FOR 26.65 FEET TO THE POINT OF BEGINNING. LESS THAT
PART THEREOF AS DESCRIBED IN ORDER OF TAKING RECORDED IN OR BOOK
6656, PACE 889.
AND LESS THE FOLLOWING DESCRIBED PARCEL TO WIT:
LEGAL DESCRIPTION: PARCEL 2
A TRACT OF LAND LYING IN SECTION 30, TOWNSHIP 28 SOUTH, RANGE 16
EAST, CLEARWATER, PINELLAS COUNTY, FLORIDA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE CENTER OF SAID SECTION 30; THENCE S.00'12'15'E, FOR
50.00 FEET, ALONG THE CENTERLINE OF U.S. HIGHWAY 19; THENCE
N.89'55'13'W, FOR 100.00 FEET, TO THE INTERSECTION OF THE SOUTH
RIGHT-OF-WAY LINE OF S.R. 580, AND THE WEST RIGHT-OF-WAY LINE OF
U.S. HIGHWAY 19 (A 200 FOOT RIGHT-OF-WAY), THENCE ALONG SAID
RIGHT-OF-WAY THE FOLLOWING THREE (3) COURSES: 1) S.0012'15'E, FOR
150.49 FEET, TO A POINT OF CURVATURE OF A CURVE CONCAVE TO THE
NORTHEAST; 2) THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE
HAVING A RADIUS OF 2964.93 FEET, CENTRAL ANGLE OF 21'50'27', AND
ARC LENGTH OF 1130.21 FEET, AND A CHORD BEARING S.11'07'28'E, FOR
1123.38 FEET; 3) THENCE CONTINUE SOUTHEASTERLY ALONG THE ARC OF
SAID CURVE HAVING A RADIUS OF 2964.93 FEET, CENTRAL ANGLE OF
04'59'40', AN ARC LENGTH OF 258.46 FEET, AND A CHORD BEARING
S.24'32'32'E. FOR 258.37 FEET; THENCE, LEAVING SAID RIGHT-OF-WAY
LINE S.53'51'47'W, FOR 93.06 FEET; THENCE N.36'08'28'W, FOR 111.50
FEET; THENCE S.53'51'32'W, FOR 229.00 FEET; THENCE N.36'08'28'W,
FOR 18.50 FEET; THENCE S.53'51'32'W, FOR 201.65 FEET; THENCE
N.36'08'23'W, FOR 160.00 FEET; THENCE S.53'51'32'W, FOR 53.82 FEET
TO THE POINT OF BEGINNING; THENCE CONTINUE S.53'08'28'W, A DISTANCE
OF 157.20 FEET, TO A POINT ON THE EASTERLY RIGHT-OF-WAY LINE OF
ENTERPRISE ROAD; THENCE ALONG SAID RIGHT-OF-WAY LINE N.55'19'05'W,
FOR 307.28 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE
NORTHEAST; 2) THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE
HAVING A RADIUS OF 270.00 FEET, CENTRAL ANGLE OF 45'19'50', AN ARC
LENGTH OF 213.62 FEET, AND A CHORD BEARING N.32'39'10'W., FOR
208.09 FEET TO THE POINT OF COMPOUND CURVATURE OF CURVE CONCAVE TO
THE NORTHEAST; 3) THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE
HAVING A RADIUS OF 835.00 FEET, A CENTRAL ANGLE OF 00'24'40', AN
ARC LENGTH OF 5.99 FEET AND A CHORD BEARING N.09'46'55'W, FOR 5.99
FEET TO A POINT ON THE SOUTH LINE OF THE PLAT OF DUNEDIN INDUSTRIAL
PARK, AS RECORDED IN PLAT BOOK 64, PACE 76, OF THE PUBLIC RECORDS
OF PINELLAS COUNTY, FLORIDA; THENCE ALONG THE SOUTHERLY AND
EASTERLY LINES OF SAID PLAT THE FOLLOWING TWO (2) COURSES: 1)
S.89'55'13'E, FOR 6.87 FEET; 2) THENCE N.00'04'47'E, FOR 167.02
FEET; THENCE, LEAVING SAID PLAT, S,89'55'13'E, FOR 220.00 FEET;
THENCE SOUTH. FOR 294.58 FEET TO THE POINT OF BEGINNING; HAVING AN
AREA OF 1500414.4 SQUARE FEET, 3.44 ACRES MORE OR LESS.
EXHIBIT A-1
LEGAL DESCRIPTION
SPECTRUM PROPERTY
A part of Tract 9, MAITLAND CENTER SECTION THREE, Maitland, Orange
County, Florida, according to the plat thereof as recorded in Plat
Book 10, Page 10, Public Records of Orange County, Florida, more
particularly described as follows:
BEGIN at the Southwest corner of SUN BAY CLUB UNIT 1, as shown on
the plat thereof as recorded in Condominium Plat Book 7, Pages 70
through 87, Public Records of Orange County, Florida; THENCE North
8956'05" East along the South boundary of said SUN BAY CLUB UNIT
1 a distance of 42.00 feet; THENCE South 78Section03'55" East a distance
of 200.00 feet; THENCE South 2822'30" East a distance of 44.11
feet; THENCE South 69Section12'28" East a distance of 753.22 feet to the
Southeast corner of Tract 9; THENCE South 64Section33'33" West a distance
of 1057.07 feet to a point on the West boundary of Tract 9, said
point being on a curve concave Southwesterly, a radial line to said
point bearing South 88Section23'40" East; THENCE Northerly along said
West boundary, along the arc of said curve, having a radius of
709.07 feet, through a central angle of 18Section47'19" a distance of
232.52 feet to a point of reverse curvature of a curve concave
Easterly; THENCE Northerly along said West boundary of Tract 9,
along the arc of said curve having a radius of 639.07 feet, through
a central angle of 33Section05'55" a distance of 369.18 feet to a point
of reverse curvature of a curve concave Westerly; THENCE Northerly
along said West boundary of Tract 9, along the arc of said curve
having a radius of 709.07 feet, through a central angle of
15Section58'50" a distance of 197.77 feet to a point of tangency; THENCE
North 00Section03'55" West along said West boundary of Tract 9, a
distance of 12.97 feet to the point of beginning.
Exhibit B
Personalty
That personalty owned by Assignor and located upon the real
property described in Exhibit A and Exhibit A-1 attached hereto as
of September 12, 2002.
EXHIBIT NUMBER 10.49
ASSIGNMENT OF WARRANTIES AND ASSUMPTION AGREEMENT
This Assignment of Warranties and Assumption Agreement (the
"Assignment") is entered into as of July 30, 2002, by and between
ABR PLYMOUTH PLAZA, LTD. and ABR SPECTRUM, LTD., both entities
being Florida limited partnerships ("Assignor") and DECADE
COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP, a Wisconsin
limited partnership ("Assignee").
RECITALS
A. Assignor and Assignee have entered into a Purchase and Sale
Agreement dated June 12, 2002 (the "Agreement") for the sale
of real property situated in Pinellas County and Orange
County, State of Florida, described in Exhibit A and
Exhibit A-1 attached hereto and incorporated herein by virtue
of this reference (the "Real Property").
B. Assignor desires to assign to Assignee all of Assignor's
right, title, and interest in and to the warranties,
guaranties, and similar rights described below, and
Assignee desires to accept such assignment from Assignor.
AGREEMENTS
In consideration of the sum of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Assignor and Assignee hereby agree as
follows:
1. Assignor assigns, sets over, transfers, conveys, and sells to
Assignee all of Assignor's right, title and interest in and
to the warranties, guaranties, and similar rights (the
"Warranties and Guaranties"), if any, that Assignor may hold
or own, all as described on Exhibit "B" attached hereto. By
execution hereof, Assignee accepts this Assignment, agrees to
pay and perform all terms, conditions, and covenants made by
Assignor in connection with the Warranties and Guaranties
assigned hereby, and assumes all of the obligations of
Assignor thereunder from and after the date hereof.
2. Assignor warrants that Assignor is the owner of all interest
conveyed hereby, that Assignor has full and lawful authority
to assign the Warranties and Guaranties (to the extent
permitted by the terms thereof), and that Assignor will defend
the assignment and sale under this Assignment against all
persons claiming the same or any part thereof.
3. This Assignment shall inure to and be binding upon the parties
hereto and their respective heirs, successors and assigns.
4. This Assignment shall be governed by and construed in
accordance with the laws of the State of Florida.
EXECUTED as of the date first written above.
Signed, sealed and delivered
ASSIGNOR:
IN THE PRESENCE OF:
ABR PLYMOUTH PLAZA, LTD., a Florida
/s/ Leo J. Salvatori
limited partnership
Witness No. 1 Signature
By: (Corporate Seal)
REED DEVELOPMENT COMPANY,
Witness No. 1 Printed Name A Florida corporation, as
General Partner
/s/ Debra K. Blackwell
Witness No. 2 Signature By:
Robert M. Reed, II, as President
Witness No. 2 Printed Name
/s/ Leo J. Salvatori ABR SPECTRUM, LTD., a Florida limited
Witness No. 1 Signature partnership
By: (Corporate Seal)
Witness No. 1 Printed Name REED DEVELOPMENT COMPANY,
a Florida corporation, as
General Partner
/s/ Debra K. Blackwell
Witness No. 2 Signature By:
Robert M. Reed, II, as
President
Witness No. 2 Printed Name
/s/ Nan Gregory
ASSIGNEE:
Witness No. 1 Signature
DECADE COMPANIES INCOME PROPERTIES, A LIMITED
Witness No. 1 Printed Name PARTNERSHIP, a Wisconsin limited partnership
/s/ Patsy E. Trusal By: Decade Companies, General Partner
Witness No. 2 Signature
By: Decade 80, Inc., General Partner
Witness No. 2 Printed Name By: Jeffrey Keierleber, President
By: Jeffrey Keierleber, General Partner
LEGAL DESCRIPTION;
PARCEL 1
A TRACT OF LAND LUNG IN SECTION 30, TOWNSHIP 28 SOUTH, RANGE 16
EAST, CLEARWATER. PINELLAS COUNTY, FLORIDA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE CENTER OF SAID
SECTION 30; THENCE S.00'12'15'E, FOR 50.00 FEET, ALONG THE
CENTERLINE OF U.S. HIGHWAY 19; THENCE N.89'S5't3'w, FOR 100.00
FEET, TO THE INTERSECTION OF THE SOUTH RIGHT-OF-WAY LINE OF S.R.
580, AND THE WEST RIGHT-OF-WAY LINE OF U.S. HIGHWAY 19 (A 200 FOOT
RIGHT-OF-WAY), THENCE ALONG SAID RIGHT-OF-WAY THE FOLLOWING THREE
(3) COURSES: 1) S.0012'15'E, FOR 150.49, FEET, TO A POINT OF
CURVATURE OF A CURVE CONCAVE TO THE NORTHEAST; 2) THENCE
SOUTHEASTERLY ALONG THE ARC OF SAID CURVE HAYING A RADIUS OF
2964.93 FEET, CENTRAL ANGLE OF 21'50'27', AND ARC LENGTH OF 1130.21
FEET, AND A CHORD BEARING S.11'07'28'E, FOR 1123.38 FEET TO THE
POINT OF BEGINNING; 3) THENCE CONTINUE SOUTHEASTERLY ALONG THE ARC
OF SAID CURVE HAVING A RADIUS OF 2964.93 FEET, CENTRAL ANGLE OF
04'59'40', AN ARC LENGTH OF 258.46 FEET, AND A CHORD BEARING
5.24'32'32'E. FOR 258.37 FEET; THENCE, LEAVING SAID RIGHT-OF-WAY
LINE S.53'51'47'w, FOR 93.06 FEET; THENCE N.36'08'28'w, FOR 111.50
FEET: THENCE S.53'51'32'w, FOR 229.00 FEET; THENCE N,36'08'28'W,'
FOR 18.50 FEET; THENCE 5.53'51'32'W, FOR 201.65 FEET; THENCE
N,36'08'23'W, FOR 160.00 FEET; THENCE S.53'51'32'w, FOR 210.82
FEET, TO A POINT ON THE EASTERLY RIGHT-OF-WAY LINE OF ENTERPRISE
ROAD; THENCE ALONG SAID RIGHT-OF-WAY LINE THE FOLLOWING THREE
COURSES: 1) N,55'19'05'W, FOR 307,28 FEET, TO THE POINT OF
CURVATURE OF A CURVE CONCAVE TO THE NORTHEAST; 2) THENCE
NORTHWESTERLY ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF 270.00
FEET, CENTRAL ANGLE OF 45'19'50', AN ARC LENGTH OF 213.62 FEET, AND
A CHORD BEARING N,32'39'10'W.. FOR 208.09 FEET TO THE POINT OF
COMPOUND CURVATURE OF CURVE CONCAVE TO THE NORTHEAST; 3) THENCE
NORTHWESTERLY ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF 835.00
FEET, A CENTRAL ANGLE OF 00'24'40', AN ARC LENGTH OF 5.99 FEET AND
A CHORD BEARING N.09'46'55'W, FOR 5.99 FEET TO A POINT ON THE SOUTH
LINE OF THE PLAT OF DUNEDIN INDUSTRIAL PARK, AS RECORDED IN
PLAT BOOK 64, PAGE 76, OF THE PUBLIC RECORDS OF PINELLAS COUNTY,
FLORIDA; THENCE ALONG THE SOUTHERLY AND EASTERLY LINES OF SAID PLAT
THE FOLLOWING TWO (2) COURSES: 1) 5.89'55'13'E, FOR 6.87 FEET; 2)
THENCE N.OOT34'47'E. FOR 167.02 FEET; THENCE, LEAVING SAID PLAT,
S.89'55'13'E. FOR 220.00 FEET; THENCE S.00'04'47'W, FOR 135.00
FEET; THENCE S.89'55'13'E, FOR 568.72 FEET; THENCE N.00'04'47'E,
FOR 10,00 FEET; THENCE S.36'56'12'E, FOR 70.43 FEET TO THE POINT OF
CURVATURE OF A CURVE CONCAVE TO THE NORTHWEST; THENCE NORTHEASTERLY
ALONG THE ARC OF SAID CURVE, HAVING A RADIUS OF 47.75 FEET, A
CENTRAL ANGLE OF 38'13'11', AN ARC LENGTH OF 31.85 FEET AND A CHORD
BEARING N,77'38'48-E, FOR 31,26 FEET TO A POINT OF TANGENCY; THENCE
N.58'32'12'E, FOR 121.19 FEET TO THE POINT OF CURVATURE OF A CURVE
CONCAVE TO THE SOUTHEAST; THENCE NORTHEASTERLY ALONG THE ARC OF
SAID CURVE HAVING A RADIUS OF 187.16 FEET, CENTRAL ANGLE OF
09'05'08', AN ARC LENGTH OF 29.68 FEET, AND A CHORD BEARING
N.63'04'46'E, FOR 29.65 FEET TO A POINT OF TANGENCY; THENCE
N.67'37'20'E, FOR 26.65 FEET TO THE POINT OF BEGINNING, LESS THAT
PART THEREOF AS DESCRIBED IN ORDER OF TAKING RECORDED IN OR BOOK
6656, PAGE 889.
AND LESS THE F04LOYANC DESCRIBED PARCEL TO WIT:
LEGAL DESCRIPTION; PARCEL 2
A TRACT OF LAND LYING IN SECTION 30, TOWNSHIP 28 SOUTH, RANGE 16
EAST, CLEARWATER, PINELLAS COUNTY, FLORIDA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE CENTER OF SAID
SECTION 30; THENCE S.0012'15'E, FOR 50.00 FEET, ALONG THE
CENTERLINE OF U.S. HIGHWAY 19: THENCE N.89'S5'13'W, FOR 100.00
FEET, TO THE INTERSECTION OF THE SOUTH RIGHT-OF-WAY LINE OF S.R,
580, AND THE WEST RIGHT-OF-WAY LINE OF U.S. HIGHWAY 19 (A 200 FOOT
RIGHT-OF-WAY), THENCE ALONG SAID RIGHT-OF-WAY THE FOLLOWING THREE
(3) COURSES: 1) S.00'12'15'E, FOR 150.49 FEET, TO A POINT OF
CURVATURE OF A CURVE CONCAVE TO THE NORTHEAST; 2) THENCE
SOUTHEASTERLY ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF
2964,93 FEET, CENTRAL ANGLE OF 21'50'27', AND ARC LENGTH OF 1130.21
FEET, AND A CHORD BEARING S.11'07'28'E, FOR l123.38 FEET; 3) THENCE
CONTINUE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE HAVING A RADIUS
OF 2964.93 FEET, CENTRAL ANGLE OF 04'59'40', AN ARC LENGTH OF
258.46 FEET, AND A CHORD BEARING S.24'32'31'E. FOR 258.37 FEET:
THENCE, LEAVING SAID RIGHT-OF-WAY LINE S.53'51'47'W, FOR 93.06
FEET; THENCE N.36'08'28'W, FOR 111.50 FEET; THENCE S.53'51'32'W,
FOR 229.00 FEET; THENCE N.36'08'28'W, FOR 18.50 FEET; THENCE
S.53'51'32'W, FOR 201,65 FEET; THENCE N,36'08'23'W, FOR 160.00
FEET; THENCE S.53'51'32'w, FOR 53.82 FEET TO THE POINT OF
BEGINNING; THENCE CONTINUE S.53'08'28'W, A DISTANCE OF 157.20 FEET,
TO A POINT ON THE EASTERLY RIGHT-OF-WAY LINE OF ENTERPRISE ROAD;
THENCE ALONG SAID RIGHT-OF-WAY LINE N,5519'05'w, FOR 307,28 FEET TO
THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE NORTHEAST: 2)
THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE HAYING A RADIUS OF
270.00 FEET, CENTRAL ANGLE OF 4519'50', AN ARC LENGTH OF 213.62
FEET, AND A CHORD BEARING N.32'39'10'w., FOR 208.09 FEET TO THE
POINT OF COMPOUND CURVATURE OF CURVE CONCAVE TO THE NORTHEAST; 3)
THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF
835.00 FEET, A CENTRAL ANGLE OF 00'24'40', AN ARC LENGTH OF 5.99
FEET AND A CHORD BEARING N.09'46'55'W, FOR 5.99 FEET TO A POINT ON
THE SOUTH LINE OF THE PLAT OF DUNEDIN INDUSTRIAL PARK, AS RECORDED
IN PLAT BOOK 64, PACE 76, OF THE PUBLIC RECORDS OF PINELLAS COUNTY,
FLORIDA; THENCE ALONG THE SOUTHERLY AND EASTERLY LINES OF SAID PLAT
THE
FOLLOWING TWO (2) COURSES: 1) S.89'55'13'E, FOR 6.87 FEET; 2)
THENCE N.00'04'47'E, FOR 167.02 FEET; THENCE, LEAVING SAID PLAT,
5.89'55'13'E, FOR 220.00 FEET; THENCE SOUTH, FOR 294.56 FEET TO THE
POINT OF BEGINNING: HAVING AN AREA OF 1500414.4 SQUARE FEET, 3.44
ACRES MORE OR LESS.
EXHIBIT A
LEGAL DESCRIPTION
SPECTRUM PROPERTY
A part of Tract 9, MAITLAND CENTER SECTION THREE, Maitland, Orange
County, Florida, according to the plat thereof as recorded in Plat
Book 10, Page 10, Public Records of Orange County, Florida, more
particularly described as follows:
BEGIN at the Southwest corner of SUN BAY CLUB UNIT I, as shown on
the plat thereof as recorded in Condominium Plat Book 7, Pages 70
through 87, Public Records of Orange County, Florida; THENCE North
89Section56'05" East along the South boundary of said SUN BAY CLUB UNIT
I a distance of 42.00 feet; THENCE South 78Section03'55" East a distance
of 200.00 feet; THENCE South 28Section22'30" East a distance of 44.11
feet; THENCE South 69Section12'28" East a distance of 753.22 feet to the
Southeast corner of Tract 9; THENCE South 6433'33" West a distance
of 1057.07 feet to a point on the West boundary of Tract 9, said
point being on a curve concave Southwesterly, a radial line to said
point bearing South 88Section23'40" East; THENCE Northerly along said
West boundary, along the arc of said curve, having a radius of
709.07 feet, through a central angle of 18047'19' a distance of
232.52 feet to a point of reverse curvature of a curve concave
Easterly; THENCE Northerly along said West boundary of Tract 9,
along the arc of said curve having a radius of 639.07 feet, through
a central angle of 33Section05'55" a distance of 369.18 feet to a point
of reverse curvature of a curve concave Westerly; THENCE Northerly
along said West boundary of Tract 9, along the arc of said curve
having a radius of 709.07 feet, through a central angle of
15Section58'50" a distance of 197.77 feet to a point of tangency; THENCE
North OOU03'55" West along said West boundary of Tract 9, a
distance of 12.97 feet to the point of beginning.
EXHIBIT B
NONE
EXHIBIT 10.50
ASSIGNMENT OF LEASES AND SECURITY DEPOSIT AND ASSUMPTION AGREEMENT
This Assignment of Leases and Security Deposit and Assumption Agreement (the
"Assignment") is entered into as of July 30, 2002, by and between ABR PLYMOUTH
PLAZA, LTD. and ABR SPECTRUM, LTD., both entities being Florida limited
partnerships ("Assignor"); and DECADE COMPANIES INCOME PROPERTIES, A LIMITED
PARTNERSHIP, a Wisconsin limited partnership ("Assignee").
RECITALS
A. Assignor and Assignee have entered into a Purchase and Sale Agreement
dated June 12, 2002 (the "Agreement") for the sale of real property
situated in Pinellas County and Orange County, State of Florida,
described in Exhibit A and Exhibit A-1 attached hereto and incorporated
herein by virtue of this reference (the "Real Property").
B. Assignor desires to assign to Assignee all of Assignor's right, title,
and interest in and to any and all leases of space in buildings and
improvements located on the Real Property described below, and Assignee
desires to accept such assignment from Assignor, and to assume
Assignor's obligations thereunder from and after the date of this
Agreement.
AGREEMENTS
In consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignor assigns, sets over, transfers, conveys, and sells to Assignee
all of Assignor's right, title and interest as landlord in and to those
certain leases for space in the buildings and improvements situated on
the Real Property (the "Leases") and identified in Exhibit B attached
hereto and incorporated herein by virtue of this reference, and the
rents, income, receipts, revenue, issues, and profits derived or
arising from the Leases and any and all security and other deposits held
by Assignor under the Leases payable thereunder, from and after the
date of this Agreement; provided, however, if Assignor has received a
credit against the purchase price payable under the Purchase and Sale
Agreement for the amount of any such deposits, Assignor shall not be
deemed to have conveyed, assigned, or sold the same hereunder. For
purposes of this Assignment, rents, income receipts, revenues, issues,
and profits include, without limitation, minimum rents, additional
rents, percentage rents, deficiency rents, liquidated damages following
default, together with any and all rights and claims of any kind which
Assignor may have against any tenant under the Leases or any subtenants
or occupants of the Real Property, for the time period commencing from
and after the date hereof. By execution hereof, Assignee accepts this
Assignment, agrees to assume and perform all terms, conditions, and
covenants made by Assignor, as landlord, in each lease assigned hereby,
and assumes all of the Leases and any and all of the obligations of
Assignor as landlord thereunder accruing from and after the date hereof.
2. Assignor represents and warrants that the information shown on
Exhibit B relating to the security deposits and the payment of rents
accurately reflects all rental payments and security deposits paid to
date, and that Assignor shall indemnify and hold Assignee harmless for
any errors or omissions therein.
3. Assignor warrants that Assignor is the owner of all interest conveyed
hereby; that Assignor has not transferred, sold, pledged, or assigned
any of the Leases or any of the rents thereunder or any right or
interest therein; that Assignor is entitled to receive rents from the
Real Property and to enjoy all other rights mentioned herein; that
except as noted in Exhibit B, there is no default now existing under any
of the Leases; that the Leases are valid and enforceable in accordance
with their terms; that Assignor has full and lawful authority to assign
the Leases; and that Assignor will defend the assignment and sale under
this Assignment against all persons claiming the same or any part
thereof. In the event of such a claim, upon Assignor's written request,
Assignee shall make available to Assignor the original documents, or
copies thereof, to the extent in Assignee's possession or control, as
are necessary to defend such a claim, and shall cooperate with Assignor
as reasonably necessary, at no expense to Assignee, to defend such a
claim.
4. Assignor hereby agrees to indemnify and hold Assignee harmless from and
against any loss, expense, or liability (including attorneys' fees,
expenses of litigation, and costs of any appeal) resulting from
Assignor's breach of Assignor's responsibilities and obligations under
any of the Leases assigned hereunder which may accrue prior to the date
hereof. Assignee hereby agrees to indemnify any loss, expense or
liability (including attorneys' fees, expenses of litigation, and costs
of appeal) resulting from any breach of Assignee's responsibilities and
obligations under any lease assigned hereunder and assumed by Assignee
which may accrue from and after the date hereof.
5. This Assignment shall inure to and be binding upon the parties hereto
and their respective heirs, successors and assigns.
6. This Assignment shall be governed by and construed in accordance with
the laws of the State of Florida.
EXECUTED as of the date first written above.
Signed, sealed and delivered ASSIGNOR:
in the presence of:
ABR PLYMOUTH PLAZA, LTD., a Florida
limited partnership
/s/ Leo J. Salvatori
Witness No. 1 Signature By: (Corporate Seal)
REED DEVELOPMENT COMPANY,
Witness No. 1 Printed Name A Florida corporation, as General Partner
/s/ Debra K. Blackwell
Witness No. 2 Signature By: /s/ Robert M. Reed
Robert M. Reed, II, as President
Witness No. 2 Printed Name
/s/ Leo J. Salvatori ABR SPECTRUM, LTD., a
Florida limited
Witness No. 1 Signature Partnership
By: (Corporate Seal)
Witness No. 1 Printed Name REED DEVELOPMENT COMPANY,
/s/ Debra K. Blackwell A Florida corporation, as General Partner
Witness No. 2 Signature
By: /s/ Robert M. Reed
Robert M. Reed, II, as President
Witness No. 2 Printed Name
/s/ Nan Gregory ASSIGNEE:
Witness No. 1 Signature
DECADE COMPANIES INCOME PROPERTIES,
A LIMITED PARTNERSHIP, a
Witness No. 1 Printed Name Wisconsin limited partnership
Witness No. 2 Signature By: Decade Companies, General Partner
By: Decade 80, Inc., General Partner
Witness No. 2 Printed Name By: /s/ Jeffrey Keierleber
Jeffrey Keierleber, President
By: /s/Jeffrey Keierleber
Jeffrey Keierleber, General Partner
EXHIBIT A
'SS31 a0 3don S3dOY tiT '133 3dYnOS t'tttOOSL JO v3bY NY ONIIAVH 'DNINNID38
JO 1NIOd 3H1 01 133.1 MW 40.4 'HiAOS 30N3H1 1133) 00'OZZ bOJ '3,Ct,SS.62 S
'IYld oIYS ONAY31 '33N>U 11331 ZO'49l bo.1 '3.0,+0.00 N 30N>1 (Z 1331 42'9
bo.1 '3.Ct,59.69 S (t :S3Sbno3 (Z) OAU ONVAOIIOJ 3H1 iYld oIYS 10 S3Nn
Au31SY3 ONY A1d3H1nOS 3H1 DNOlY 3ON3H1 1YOIVOIJ 'A1NnOJ SY113HId JO SObOO3b
3118nd 3H1 JO '9L 30Yd 't9 XOOe IY1d NI 030b0338 SY 'XbYd 1VI&Sf)ONI NI03Nn0
..10 IYld 3H1 JO 3Nn HIAOS 3H1 NO 1NIOd Y 01 1331 66'Q VOJ 'M,SS,9v,60'N
ONIbY38 ObOH3 V ONV 133 66'S .10 H1DN31 Obr NY ',Ot,tZ.00 JO 31ONY lvkUN30 Y
'1331 00'SCQ JO SOIOYb Y OWYH 3Abn3 oIYS O UY 3H1 DNOlY Alb31S3MHIWON
33N3F11 (C 11SY3H1dON 3H1 Ol 3AYONOD 2Adn3 JO JO 3tlnlVAbn3 ONn0dAo3 JO LNIOd
3H1 01 133 60'90Z WJ "MM,6UC'N DNIdr3e Obomo V ONY '133 Z9'CtZ JO HLDN31
02ly NY ',06,6LSv JO 31ONY IYb1N33 '133 00'OZZ JO Snlova v DNIAVH 3Adn0 oIYS
do Oar 3tt1 ONOlY klM3.LS3MHLbON 33N3H1 (Z :1SY3H1a0N 3HI 01 3AYJN00 3AbnO Y
10 3bfUVAdn3 JO 1NIOd 3ft1 Ol 133 QZ'LOC UOJ 'M,S0,6L49'N 3NI1 AVM-JO-1HDIb
oIYS ONOlY 30NIHL 10VOb 3SIbdb31N3 0 3Nn AYM-10-1HOIb Alki31SY3 3H1 NO 1NIOd
Y 01 '1331 OZ'L6l .10 30NYISI0 Y 'M,8Z,90.CS'S 3nNILNO3 33N3HI 1DNINNI038 JO
INIOd 3H1 01 1331 Z9 'CS Lb0 'M,LC,tS.CS'S 33N>1 133 00'091 b0.1
'M,CZ,20.9C'N 33N3Hl '133 S9'tOZ b01 'M,ZC,IS.CS'S 33N3H1:133 OS'9t tio
'M.9Z,Q0.9C'N 33N3Ft1 1331 00'6ZZ bOJ 'M.ZC,1S.CS'S 33N3H1 Y33J OS'tt1 b0
'M.QZ,Q0.9C'N 30N3H1 133 90'C6 d0 'M,Gt,tS,CS'S 3Nn AYM-JO-LHDlb OIYS
ONAY31 '30N3rU 133 LC'2SZ 103 '3.ZC,ZC.PZ'S ONIbY3e O8OH3 Y ONY '133
9t'99Z JO HIDN31 OdY NV '.Ot,6S.t0 0 31ONY IVb1N33 '133 C6'1,964 d0 Sn10Yb V
ONIAYH 3AbnO Olrs JO 3av 3H1 DNOIY Ald3LSY3HlnOS 3f)NaN03 30N3H1 (C 1331
QVCZlt bOJ '3.QZ,LO.lt'S DNIdV38 OMOH3 v ONY '1331 lZ'Oftl JO HION31 ONY ONY
'.LZ,OSAZ JO 31ONY 1YUIN30 '133 CB't96Z 1o SMOrb r ONLAYH 3Adn0 oIYS 1O 0bv
3H1 ONO)Y Alb31SY3Hi0OS 30N3H1 (Z 11SY3H18ON 3H1 Ol 3AY0N03 3AbnO Y JO
3brUYAdn3 30 LNIOd r Ol '1331 61,'OSt WJ '3,S1,LL00'S (t :S3Sbn0O (C) 33drU
DNVAOT10J 3H1 AYM-10-1HOIb OIVS DNOjY 33N>1 '(AYM-d0-1HDlb 1003 o0Z Y) 61
AVMHDIH 'S'n JO 3NII AVM-JO-IHDIN 1S3M 3H1 ONY 'OQS 'U'S JO 3NII AVM-JO-1H0Ib
HinOS 3H1 JO NOt133sb31NI 3H1 Ol 1331 00'001 101 'M.Cl,9S.69'N 33N3H1 161
AYMHDIH 'S'ri .10 3NIla3lN30 3H1 ONOlY '133 00'OS b0 '3.St,ZL00'S 30N3H1 10C
NOU33S oIYS Jo b31N30 3H1 1V 3ON3nrlOO ISMO110J SV 0381UJS30 k%lYln3UbfYd
3a0n ONI38 ONY 'YOI8OIJ 'AINn00 SY113NId 'b31YMdY310 '1SY3 91 30NYV 'tUf)OS QZ
diHSNM01 'OC NOt103S NI ONU1 ONVI JO 1DYb1 Y Z 133bvd 11NOI1dWS30 1Y031
UV'A Ol 130UYd 0381dOS30 DN1MOIloj 3H1 SS31 ONr
'692 30rd '9999 HOOK b0 NI 030b003b DNIXYI JO a30dO Ni 03BIdOS30 SV .1030H1
ldYd LYhU SS31 'ONINNID38 .10 LNIOd 3FU 01 1333 S9 9Z bOJ '3.0Z,LC,G9'N
3ON3H1 1AON30NY1 .10 1NIOd V Ol 1331 99'6Z NOJ '3.9+,+O.C9'N DNIHV38 OUOH3 Y
ONY '133.1 99'62 d0 HION31 Dar NY ',90,90.60 JO 31ONY Wb1N33 '1331 9t'L2t .10
Snicyn v oNtnym 3Aan3 oIYS 10 :)by 3H1 DNOIv A1a315v3KIboN 30N>1 115Y3HinoS
3H1 Ol 3AYON03 3AbnD Y JO 3drLLYA03 JO 1NIOd 3HI of 1331 6t'iZl b0
'3.Zt,ZC,QS'N 30N3).1 1AON30NY1
30 1NIOd Y Ol 1331 9Z'lf bOJ '3,Bti,9C.LL N ONIbY38 ObOH3 Y ONV 1331 S9'tC
..10 FUDN31 3WY NY ',n,Ct.9C JO 31ONY lYb1N33 V '133 SL'Lv JO SnIOvb Y ONIAYH
'3AdnD oIYS JO DVY 3H1 0NOlY ),la31Sr3HIWN 30H3K1 :1S3MK1bON 3H1 Ol 3AYON03
3Aan0 V .10 3bnirndn3 1o 1NIOd 3H 01 133.1 Ct'04 b01 '3,Zl,9S.9C'S 3ON3H1
1133 00'01 dOJ '3.Ct,t0.00'N 3ON3H1 '1331 ZL'995 bO.1 '3S1,SS,681 30N>1
'133 00'SCl bOJ 'M.Lt,f0.00'S 3ON3H1 1133 00'OZZ WJ '3.Ct,SS.6Q'S 'IYld 01YS
DNLAY31 '33N3K1 133.1 ZO'L9t bOJ '3.Lt,t0.00'N 30N31(1 (Z '133.1 49'9 101
'3.Ct,SS,6B'S (t S3SdnOO (Z) OKI ONVAO1lOJ 3tU IYld oIYS .10 s3Nn Ala31SY3
ONr Ald3h11nOS 3H1 0NOlY 33N3H1 1VOIdOld 'A1N000 SY113NId 0 SOb033b O118nd
3ru JO '9L 33rd 't9 X008 IYld Ni o306O33b S'Y ')Ibrd 1YIb1SnoN1 NI03Nn0 .do
1Vld 3H1 O 3Nn H1nOS 3H1 NO 1NIOd V Ol 133 66-S VOJ 'M.99,9t,60'N ONIuY39
ObOH0 Y ONY 133.1 66 'S JO HLON31 ObY NY '.Ot,iZ.00 JO 31ONY lyMiN30 Y '133.1
00'SCQ JO SniCYb Y ONIAVH 3Abn0 oIYS 10 Odv 3H1 DNOlY A1b3153MFUbON 30N3H1 (C
11SY3H1bON 3H1 01 3AVON03 3Atln3 JO JO 3brUYAbn3 ONnOdn03 .10 1NIOd >U of 1331
60'QOZ b0d "M,O1,6C,ZC'N DNINV38 ONOH3 Y ONY '133.1 Z9'fiZ 0 tUDN3l DbY NY
'.OS,6LSt 10 31ONY lvti1N33 '133 00'OLZ Jo SAIOYV r ONAYH 3A600 OIVS JO :)WY
3H1 ONOlY A1b3MMFUbON
30N3H1 (Z 11SY3FUbON 3H1 01 3AYONOO 3Abn3 Y JO 3MAJLYAbn3 40 iNJOd 3H1 01
'133.1 QZ'40C bOJ 'M.S0,6LSS'N (1 :S3Snn00 33bml DNIMOIIOJ 3HI 3Nn
AYM-.10-1HOId oIYS DNOIV 330H1 10YOa 3SIbda31N3 JO 3NIl AYM-JO-1H0)d Alb31SY3
3H1 NO 1NIOd Y 01 '1331 Z9'OtZ b0 'M.ZC,lS,CS'S 30N3H 11331 00'091 d0.1
'At,CZ,90.9C'N 30N3H1 1133) S9'IOZ d0 'M.Zf,MCS'S 30N31u '133.1 OS'Ql a0.1
;M.QZ,Q(19C'N 3ON3HI 11331 OO'6LZ bOJ 'M,LC,IS.fS'S 30N3tu 133.1 09 11, b0
'M,9l,90.9V'N 30N3H1 11331 90'C6 a0J 'M,Lt,MMS 3NII AYM-JO-1MDId oIYS DNIAY31
'300H1 1133J LC'QSZ bOJ '3,ZC,ZC.i Z'S DNIWY39 OMOH3 Y ONY '133 9t'9SZ .10
HiDN31 Odv NY ',Ot,6S.t0 JO 31ONY lYtUN30 '1331 C6't96Z 0 SMOYd Y ONIAYH
3Aan0 oIYS JO 3bv 3H1 DNOlY A1b31SY3H1AOS 3nNUNOD 30N3H1 (C 1DNINNI038 JO
INIOd 3rU Ol 133.1 9C'CL11 dO.1 '3,9Z,LO.tt'S ONIdY38 ObOHO Y ONV '1331
IZ'OCII JO H1DN31 0dY ONY '.LZ,OS.IZ JO 31ONY IYa1N33 '133.1 C6't96Z .10
SOIOYV v DNIAYH 3Abn3 OIVS .10 3bV 3H1 DNOly kltl31SY3H10OS 30N3H1 (Z
11SY3H1bON 3tu Ol 3AV0No3 3Adn3 Y .10 3dnlYAbnO JO 1NIOd v of '133.1' 6t'OSI
bOJ '3.Sl,ZL00'S (t 1S3Sbn03 (C) 33WH1 ONVkOIIOJ 3H1 AYM-JO-1HOib DIY$
DNOlY 30N>1 '(AYM-40-1HOIb IOOJ OOZ Y) 6t AYMHOIH 'S'n 30 3NIl AYM-10-1HOId
1S3M 3H1 ONY '099 YS JO 3NIl AYM-JO-1HDId.HInOS 3H1 d0 NOU03Sd31NI 3H1 01
'1331 00'OOt bOJ 'M,C1,SS.6B'N 30N3H1 161 AYMHOIH 'S'n .10 3NIlb31N30 3Ht
0NOlY '1331 00'OS 101 '341,ZL00'S 30N31t1 10C N0003S oIYS 0 d31N33 3H1 IV
33N3nw00 1SM0110J SY 0381WOS30 A'IUY')nOLLdvd 3don DNI38 ONY 'YOIbOlj 'AINnOJ
SY113NId 'a31rMdY310 '1SY3 91 3DNYd 'HinOS BZ dIHSNM01 'OC NO1103S NI ONUl
ONYI JO 13Vd1 Y ' i 1308Yd 1NOUd1a0S30 1Y031
EXHIBIT A
EXHIBIT A-1
LEGAL DESCRIPTION
SPECTRUM PROPERTY
A part of Tract 9, MAITLAND CENTER SECTION THREE, Maitland, Orange County,
Florida, according to the plat thereof as recorded in Plat Book 10, Page 10,
Public Records of Orange County, Florida, more particularly described as
follows:
BEGIN at the Southwest corner of SUN BAY CLUB UNIT I, as shown on the plat
thereof as recorded in Condominium Plat Book 7, Pages 70 through 87, Public
Records of Orange County, Florida; THENCE North 89Section56'05" East along the
South boundary of said SUN BAY CLUB UNIT I a distance of 42.00 feet; THENCE
South 78Section 03'55" East a distance of 200.00 feet; THENCE South 28
Section 22'30" East a distance of 44.11 feet; THENCE South 69 Section 12'28"
East a distance of 753.22 feet to the Southeast corner of Tract 9; THENCE
South 64Section33'33" West a distance of
1057.07 feet to a point on the West boundary of Tract 9, said point being on
a curve concave Southwesterly, a radial line to said point bearing South
88Section23'40" East; THENCE Northerly along said West boundary, along the
arc of said curve, having a radius of 709.07 feet, through a central angle of
18'47'19" a distance of 232.52 feet to a point of reverse curvature of a
curve concave Easterly; THENCE Northerly along said West boundary of Tract 9,
along the arc of said curve having a radius of 639.07 feet, through a central
angle of 33Section05'55" a distance of 369.18 feet to a point of reverse
curvature of a curve concave Westerly; THENCE Northerly along said West
boundary of Tract 9, along the arc of said curve having a radius of 709.07
feet, through a central angle of 15Section58'50" a distance of 197.77 feet to
a point of tangency; THENCE North OOU03'55" West along said West boundary of
Tract 9, a distance of 12.97 feet to the point of beginning.
PLYMOUTH PLAZA RENT ROLL
ratio
Tenant unm Leased Vacant Annual eem/n= So. Ft.
om mw Tenant Name
- --7-77
$22,65
Lucent Technologies 2-DD 01 16,484 i 289,522 j $18.74
1 $0.00 05/2511999 NA 5% on amount over CAIV Saw MNI
vacant 3011
10,381, 190,940; $18.43 . $0.00; ouxnano NA
Rent m,c,emy omoamm
CpA . 20 mm. 6,r1 'Annual Rent Steps ,wm
1 Life Insurance sm1.839 Jo $
w NA Add. Rowmw aommm
Eae TNx u A s ma AmmmVm
x34| 11,23S| mu,9s Y`n.3r $0.00 Fiscal Yr 2002
THE SPECTRUM BUILDING 112,273 SQUARE FEET RENT ROLL -September 2002
yi)1 1 1h lsa t
100 Vacant
101 I FBI
104 1 Reliance Standard Life Incur.
to$ I Randolph, Swain, Teltenl, Whitehead b German
1,229 3.796 2,617
3.061
3,061 1,229 3,796 2,617
$20.00 519.00 $18.75
$24.580 572,124 $46,069
$0.00 $7 25 $7.25
12-17-97 8d 1.99 0&01-93
09-30--03 12 09-30-07 60 09-30-05 30
None (1) S-year None
s year ren.wet eBedlve so/u0z. Roles: $19419.571S20.115/320.76421.38
3yearrenewalellec8ve10/01/02. rteles:S18.7S/S19.25420.00
106 110 111 114 115 116 117 120 122
EMI, A Modis Solutions Cu, Network Magid
Spectrum Cafe Texas Instruments Vacant
Vacant
Physicians Healthcare Ptnna
Vacant
Upchurch, Watson 6 White
1,266 967 1,590 2,406
1,996
3,738
1,261 1,121
7,035
1,266 967 1,590 2,406 1,261 1,121 1.1396 7.035 3.736
120.05 $21,00 $6.04 $2025
S20.50
$19.00
$25,764 120,307 $9,604 $46.722
$40,918
170.9x4
16.50 57.25
2000 base
2001 base
$7.25
04-01-96 0301-01 0501-00 1-15-00
03-01.01
03-01-96
09-30-03 30 02-28-06 60 04-30-05 60 1-31-05 60.5
02-28-03 1 24
06-30-02 1 66
None
None 1, syr
None
None
Ren(Irureass 4/03 to $21.43
Rental Roles based on a % o(building ocuipancy
1103-S21,00,1,10.4-S21.761/06 321.60
66 month renewal affective 7/1/02- Ralet: 119.03119.57/120.181320.76
$21.981122-03. Tenant has a right to cancel at the end of the 40th month Free
Base Rent 717102-70131/02
120
Pactlic Global Investment M9tnt.
$1950
$21.723
2002 base
09-01-02
08-31-07 1 60
None
Rates: $19.50/119.8&320.291320.901321.52. Tenant has the right to cancel at
the end of the JIM year. Ir cancellation Is exercised tenant must repay
initial three months tree rent omount (S5,766.6o)
130 132 136 140 145 toe 149
Paragon Computer Professionals Waukesha Electric Systems Vacant
Vacant
Allen Norowile 8 Assoc, VRS Really Servicrs, Inn. Vacant
2,078 1,212
683 1.959
301 10.370
416
2,076 1,222 301 10,370 683 1,959 416
$18.75 $19.76
1118,00 $18.48
$41,001 $24,135
$12,294 536,202
$8.50
2002 base
37.05
0941-97 03-2242
M-T-M 04.01.99
08-31-03 I 12 O S$1-05 37
M-T-M 9 03-31-03 24
2, yr 1, 3yr
None
First month is rent free. Yr. 2120.34psf Yr. ZZ; $20.95 Yr 4: 321.58
THE SPECTRUM BUILDING
112,22 SQUARE FEET RENT ROLL -September 2002
SUITE
7ENAk
TFC,I,-X
u Y
vrti
S
iLgR BEGINNING t ENDfNC.
$ENt11VA1
i.
1
CDMMENTS-
150 200 215 222 224 228 230 232
Vaunt Vacant vacant &asReld & Gorrie EMC Corporation' CMC Corporation'
EMC Corporation, Vacant
1,606 1,90E 2.016 1,273
3,694 28,492 7,640
4,972
3,894 28.482 7,540 1,4108 1,90E 2,018 1,273 4,872
421,38 $19,88 $19.68 $18.6E
:34.336 537,931 $40,078 s2s,307
2000 base $7.20 $7.20 $7.20
02-01-00 05-01-99 0901-07 05-01-98
09-30-03 04-30-03 04-30-03 04-3003
12 fries 48
None 1-3YR 1-3YR 1,3YR
Tenant has vaceled but continues to pay rent
TervM has vacated but continues 10 pay rent Tenant has vaoled but comlnues to
pay rent
240 Vacant
246 Brasneln E Gorrie
248 &ssneld 8 Gome
250 Brasheld & Gonto COMMON AREA SPACE 102 IConrerence Center
457 1,451 4,662
2,423
2,423 457 1,451 4,682
604
$21.38 $21,38 $21.38
$9.771 $31.022 499,674
2000 base 2000 base 2000 base
10-01-97 10-01-97 07-01-93
09-30-03 09J0-03 09-30-03
12 12 12
None None None
COMMON AREA SPACE,
40,654 70,706 111.360 319.08 5775,566 $0.00
'Indicates tenant has vacated
prentises but mn9nves to pay Oetupeevy 2s-att rent according to lease
terms
EXHIBIT NUMBER 10.51
This instrument prepared by and after recording
return to:
Leo J. Salvatori, Esq.
QUARLES & BRADY LLP
4501 North Tamiami Trail, Suitel'1300
Naples, Florida 34103
I
Exhibit A Legal Description - Plymouth Property
Exhibit B Legal Description - Decade Property
Exhibit C Legal Description & Sketch - Common Entrance
CROSS-EASEMENT AGREEMENT
This Cross-Easement Agreement is made and entered into effective the 30th day
of July, 2002, by and between ABR PLYMOUTH PLAZA, LTD., at Florida limited
partnership ("Plymouth") and DECADE INCOME COMPANIES, A LIMITED PARTNERSHIP, a
Wisconsin limited partnership ("Decade).
WITNESSETH
WHEREAS, Plymouth is the fee simple title owner of a parcel of real property
which is legally described on the attached Exhibit "A" (the "Plymouth
Property"); and
WHEREAS, Decade is the fee simple title owner of a parcel of real property
which is legally described on the attached exhibit "B"(the "Decade
Property"); and
WHEREAS, the Plymouth and Decade Properties are contiguous to one another,
having been heretofore owned by Plymouth in their entirety; and
WHEREAS, driveways presently exist over and across both the Plymouth Property
and the Decade Property, which are connected with each other, over which
ingress and egress to the respective properties may be obtained; and
WHEREAS, as a result of Plymouth selling Decade the Decade Property, it is
beneficial to both parties that this Cross-Easement Agreement be entered into,
allowing each of the parties hereto, their invitees, tenants and guests, the
right to utilize all driveways now or hereafter located on the respective
parcels of property, for purposes of ingress and egress to the same; a d for
the shared use and maintenance of utility facilities.
NOW, THEREFORE, for and in consideration of the sum of TEN ($10) DOLLARS and
other good and valuable consideration passed between the parties, the receipt
and sufficiency of which are hereby acknowledged, it is agreed as follows:
1. The above recitals pre true and correct.
2. Plymouth and Decade do hereby grant unto each other, their respective
successors and assigns, a perpetual, non-exclusive ingress and egress
easement over and across all driveways now or hereafter existing
anywhere on their respective parcels of property. Incident thereto, the
parties hereto do hereby agree as follows:
(a) Said non-exclusive ingress and egress easement is given for the
benefit of the parties hereto, their respective successors and
assigns, and all invitees, guests and tenants of said parties.
(b) Said easement shall encumber all driveways now or hereafter
located upon either the Plymouth Property or the Decade Property.
In the event that one or both of said parties wishes to hereafter
reconfigure or relocate any driveway located on their respective
parcel of property, said party may do so without the notice to,
or consent of the other; provided, however, at no time shall any
party have the right to reconfigure a driveway in such a fashion
so that the same no longer connects with the driveway located on
the other's property, without the ',consent of the other party,
which consent may be withheld for any reason. The parties further
agree that neither party shall have the right to construct a new
parking lot which integrates a driveway as o portion thereof so
that the driveway is contiguous to, and a part of,' said parking
lot; provided, however, nothing herein shall prohibit a parity
from constructing a parking lot which connects to a driveway,
through a driveway cut, so long as the driveway is otherwise
physically separated, by grass buffer or otherwise, from said
parking lot.
(c) Each party shall incur all costs of repairing, maintaining and
replacing the driveways located upon their respective parcel of
property, without contribution from the other party; provided,
however, in the event that one party should intentionally or
negligently cause damage to the other party's driveway, the party
causing said damage shall be responsible for repairing the same
at their sole cost and expense.
3. Plymouth and Decade acknowledge that there are certain utility
facilities now existing on their respective parcels of property serving
one or both of said parcels. Plymouth and Decade do hereby give and
grant unto each other perpetual, non-exclusive easements for the
installation, maintenance and repair of said utility facilities; and,
further, the installation, maintenance and repair of any additional
utility facilities later constructed or installed that may be needed to
service said properties. Incident thereto, the parties hereto do hereby
agree as follows::
(a) All new utility facilities shall be installed in such a manner as
to minimize the' impact on the other's parcel of property, and to
the fullest extent possible, shall be located in grassy areas in
which no improvements have been constructed.
Cross-Easement Agreement Page 2
(c) In the event that it is necessary to excavate either party's
properties incident to the installation, maintenance or repair of
said utility facilities, the party causing said excavation to be
performed shall be responsible for all damages caused thereby,
and remediating the property to the manner in which the property
existed prior to commencing said excavation activities.
4. This Cross-Easement Agreement shall be binding upon, and inure to the
benefit of, all heirs, successors and assigns of the parties and shall
bind all successors in title to the properties encumbered thereby.
5. The prevailing party, in any dispute which may arise concerning this
Cross Easement Agreement shall be entitled to recover its reasonable
attorney's fees and court costs from the non-prevailing party,
regardless of whether an action is filed or the dispute is resolved
prior to an action being filed, including all attorney's fees and court
costs associated with any appeal.
IN WITNESS ,WHEREOF, the parties hereto have set their hands and seals the
date and year and year first written above.
Signed, sealed and delivered PLYMOUTH::
in the presence of:
ABR PLYMOUTH PLAZA, LTD., a Florida
/s/ Leo J. Salvatore limited partnership
Witness No. 1 Signature
By: (Corporate Seal)
Witness No. 1 Printed Name REED DEVELOPMENT COMPANY,
A Florida corporation, as General Partner
Witness No. 2. Signature By: /s/ Robert M. Reed
Witness No. 2 Printed Name Robert S. Reed, II, as
President
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this 10th day of September
2002 by Robert M. Reed II as' President of Reed Development Company a Florida,
corporation, as General Partner on behalf of ABR PLYMOUTH PLAZA, LTD., a
Florida limited partnership, who is personally known to me
Cross-Easement Agreement Page 3
TYPED, PRINTED OR STAMPED NAME OF NOTARY PUBLIC
My Commission Expires:
DECADE.::
/s/ Nan Gregory DECADE COMPANIES INCOME
Witness No. 1 PROPERTIES, A LIMITED
PARTNERSHIP, a
Wisconsin limited partnership
Witness No. 1 Printed Name By: Decade Companies,
General Partner
/s/Patsy E. Trusal By: Decade 80, Inc.,
General Partner
Witness No. 2 Signature By:/s/ Jeffrey Keierleber
Witness No. 2 Printed Name Jeffrey Keierleber,
President
By: /s/ Jeffrey Keierleber
Jeffrey Keierleber, General Partner
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 13TH day of
September, 2002 by Jeffrey Keierleber, as President of Decade 80, Inc., a
Wisconsin corporation, as General Partner of Decade Companies, as General
Partner of DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP, a
Wisconsin limited partnership, on behalf of said corporation, who [x] is
personally known to me or who [ ] produced as
identification.
DECADE::
/s/ Nan Gregory
Notary Public
TYPED, PRINTED OR STAMPED NAME OF
NOTARY PUBLIC
My Commission expires:
Cross-Easement Agreement Page 4
EXHIBIT "A"
LEGAL DESCRIPTION OF
PLYMOUTH PROPERTY
PHASE 11 LEGAL
LEGAL DESCRIPTION: PARCEL. 2
A TRACT OF LAND LYING IN SECTION 30, TOWswr 28 SOUTH, RANGE 15 EAST.
CLEARWATER, PNNLLII COUNTY, FLORIDA, AND BEWC MORE PARTICULARLY DESCRIBED
AS MOWS: ,
COMMENCE AT THE CENTER OF SAID SEC" 30; THENCE 5.0012'15, FOR 50.00 FEET.
ALONG THE CENTERLINE OF U.S. HIOMY I9; THENCE N.695513"A FOR ID0.00 FEET, TO
THE INTERSECTION of THE SOUTH RIGHT-OF-WXY LINE OF S.R. SW. MD THE WEST
RIGHT-OF-WAY UNE OF U.S. HIGHWAY 19 (A 200 FOOT RIGHT-4F-WAY), WNCE ALONG
SAID RGHT-OF BRAY THE Fd10WN0 THREE (3) COURSE& 1} 5.00"12'13', FOR
150.,9 FEET, TO A POINT OF CURVATURE OF A CURVE CONCAVE TO THE NORTHEAST, 2)
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE HAVING ,A RADIUS OF 2964.93
FEET. CENTRAL ANGLE OF M0'2. AND ARC LENGTH OF 1130.21 FEET, AND A CHORD
SEARING S.11'07'21'E, FOR 1123.35 FEET; 3) THENCE CONTINUE SOUTHEASTERLY
ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF 2964.93 FEET. CENTRAL ANGLE OF
04`59'46'. AN ARC LENGTH OF 25&46 FEET.. AND A DtORD BEARING S.24'32'32'E:
FOR 2SU7 FEET; THENCE. LEAVING SAID R4HT-OF-WAY LINE S0'51'4TK FOR 93.06 FEET;
THENCE N.36TW28'K FOR 111.50 FEET. THENCE S.53'S1'3fK FOR 229.00 IFEET;
THENCE &36VZFT1'% FOR 18.30 FEET:TltEKa 5.33'51'32'4., FOR 2{11.63 FEET;
TrENCE N.36'0823~K FOR 1QO-00 FEET THENCE &s3'51'3rW, FOR 53.02 FEET TO THE
PONT OF BECINNING; THENCE CONTINUE S.53'Oe2WW. A DISTAXCE OF 157.20 FEET, TO
A POINT ON THE EASTERLY RIGHT-OF-WAY LINE OF ENTERPRISE_ ROAD; THENCE ALONG
SAID RWT-OF-'WAY LINE K55ll'Or-t, FM 3GTvWFEET TO THE PANT OF CURVATURE OF A
CURVE CONCAVE TO THE MRTHEASt; 2) THENCE NDRTHWESTMY ALONG THE ARC OF
SAID CURVE HANG A RADIUS OF 270.00 FEET, CENTRAL ANGLE OF 45'14'6('. A14 ARC
LENGTH OF 213,62 FEET. AND A CF40M BEARING K=910'X. FOR 208.09 FEET TO 7FIE
PANT OF COMPOUND CURVATURE OF OF CURVE CONCAVE TO THE NORTHEAST, 3) THENCE
NORTHWESTERLY ALONG THE ARC OF SAI9 CURVE HAVING A RADIUS OF 855.00 FEET. A
CENTRAL AN" OF 00'24'40'. AN ARC L04M OF 5.99 FEET AND A CHGR0 REARING
N.0946'55'11; FOR 5.94 FEET TO A POINT 014 THE SOUTH LINE OF THE PLAT OF MNEW
INOUSTRIAt PARK. AS RECORDED IN PLAT BOOK 194, PACE 76, OF THE PLSLIC RECORDS
OF PINELLAS COUNTY, FLORIDA; THENCE ALONG THE SOUTHERLY ANO EASTERLY LINES OF
SAID PLAT THE rOULOWkNG TWO (2) COURSE$: 1) S.89'83'13'E, FOR 6.87 FEET.
2) THENCE N.00104'47'E, FOR 167.02 FEET: THENCE, LEAVING SAID PLAT.
58955'13 f, FOR 220.00 FEET. THENCE S0UM FOR 294.58 FEET TO THE POINT OF
BEGINNING: HA14NG AN AREA Of 163663.3 SOUAR FEET, 3.80 ACRES MORE OR LESS.
EXHIBIT "B"
LEGAL DESCRIPTION OF
DECADE PROPERTY
PHASE I LEGAL
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EXHIBIT NUMBER 10.52
This instrument prepared by,
and after recording return to:
Leo J. Salvatori, Esquire
Quarles & Brady
4501 Tamiami Trail North
Suite 300
Naples, Florida 34103
SIGNAGE EASEMENT AGREEMENT
THIS SIGNAGE EASEMENT AGREEMENT (the "Agreement") is made and entered Into
effective the 30th day of July, 2002 by and between ABR PLYMOUTH PLAZA, LTD.,
a Florida limited partnership ("Plymouth"); and DECADE COMPANIES INCOME
PROPERTIES, A LIMITED PARTNERSHIP, a Wisconsin limited partnership
("Decade").
RECITALS
1. WHEREAS, Plymouth and Decade are the owners of certain properties in
Pinellas County, Florida, the legal descriptions of which are depicted
on Exhibit A ('the "Plymouth Property") and Exhibit R (the "Decade
Property") attached hereto and incorporated herein by virtue of this
reference.
2. WHEREAS, the Decade Property may be accessed over and across the
Plymouth Property through an existing driveway, located on the sketch
attached hereto as Exhibit C and incorporated herein by virtue of this
reference.
3. WHEREAS, no signage presently exists at the intersection (the
"Intersection") of said driveway with Enterprise Avenue. However,
Plymouth contemplates that at some time Plymouth, Plymouth's
successors, Decade, or Decade's successors, may wish to construct a
monument sign adjacent to said Intersection. In that event, Decade may
wish to participate in the cost of construction of said sign, and the
use of the same, in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, end for other good and valuable consideration, the parties
hereto agree as follows:
4. The above-captioned recitals are true and correct,
5. In the event that Plymouth or Decade ever elects to construct a sign in
the vicinity of the intersection of the existing driveway and
Enterprise Avenue as depicted on Exhibit C, which sign, at a minimum,
may list all tenants in the buildings located on the Plymouth
Propertyand the Decade Property and direct all visitors and customers to
such buildings, the parties hereto do hereby agree as follows:
a. Plymouth shall grant unto Decade, at Decade's option, a perpetual,
non-exclusive easement (the "Easement") , for the shared use of
said signage, consistent with the terms of this Agreement.
b. Said signage shall be constructed at the shared cost and expense
of both Plymouth and Decade provided Decade elects to be included
on such sign. In the event of such joint participation, Plymouth
shall be responsible for sixty-four (64%) percent, and Decade
shall be responsible for thirty-six (36%) percent, of the cost of
the design; permitting, construction and installation thereof.
c. Plymouth shall be responsible for the design and construction of
said signage, and all attendant landscaping, lighting, irrigation
and facilities. In the event Decade elects to be included on the
sign, Decade must approve of the design and plans and
specifications for such signage before Plymouth causes same to be
constructed. Said sign shall be a monument sign, containing the
names of the buildings located upon the Plymouth Property and
Decade Property, together with such other information as the
parties hereto may mutually agree to include; provided, however,
if Decade does not elect to be included on the sign, the sign
shall be designed, and contain such information, as Plymouth
alone elects. If Decade elects to be included on the sign, Decade
shall be entitled to utilize thirty-six (36%) percent, and
Plymouth the balance, of the area of the sign designed for
containing such information.
d. Plymouth shall be solely responsible for the maintenance and
repair of said signage, and shall maintain the same in a neat and
attractive condition, and in a first class manner. Plymouth shall
be responsible for sixty-four (64%) percent, and Decade shall be
responsible for thirty-six (36%) percent, of the maintenance cost
thereof; provided, however, if Decade should not elect to be
included on the sign, Plymouth shall be solely responsible for
said maintenance costs. In the event that Plymouth should fall or
refuse to properly maintain and/or promptly repair said signage,
Decade shall have the power and authority to enter upon the area
upon which the signage is located, and remediate the deficient
situation, at the shared cost of Plymouth and Decade; provided,
however, if Decade should not elect to be included on the sign,
Plymouth shall be solely responsible for said maintenance costs.
e. Plymouth does hereby further agree that Plymouth shall be solely
responsible for the irrigation, illumination, and maintenance of
any and all landscaping attendant to any signage constructed
within the Easement Area. Plymouth shall be responsible for
sixty-four (64%) percent, and Decade shall be responsible for
thirty-six (36%) percent, of the cost of the same; provided,
however, if Decade should not elect to be included on the sign,
Plymouth shall be solely responsible for said maintenance costs.
Plymouth shall cause said landscaping and improvements to be
maintained in a good and first class manner. In the event that
Plymouth should fall to do so, Decade shall have the power and
authority to enter the Easement Area for maintaining said
landscaping, or irrigating the same, and assess Plymouth one half
of the cost of the same.
f. Decade, at its option, may construct a directional sign adjacent
to the Intersection directing traffic to any buildings located on
the Decade Property, provided said directional sign (i) does not
unreasonably interfere with Plymouth's ability to erect a
monument sign at the Intersection, (ii) shall be removed if
required by applicable governmental authorities upon construction
of a monument sign at the Intersection, or if Decade elects to be
included on the monument sign; (iii) shall be built in accordance
with all applicable permits and building codes, in a good and
workmanlike manner; and (iv) the plans and specifications of which
shall meet with Plymouth's reasonable approval. Decade shall be
solely responsible for the costs of design, construction and
maintenance of such signage, and shall hold Plymouth harmless,
and indemnify Plymouth, against any and all losses or damage
Plymouth may suffer incident thereto.
6. Plymouth shall not install the sign until it has obtained, at the shared
expense of the parties hereto (unless Decade elects to not participate
in the sign, in which case Plymouth alone shall bear said expenses),
all necessary approvals from local governing authorities. Plymouth
grants no warranties or representations to Decade as to whether local
governing authorities will grant Plymouth the necessary approvals to
install the sign.
7. In the event either party hereto should breach its respective
obligations hereunder, or fail to cure any noncompliance within thirty
(30) days after receipt of written notice from the other party hereto,
the aggrieved may seek remedies available at law or in equity for
enforcement hereof. In such event the prevailing party shall recover
costs and expenses of litigation, including but not limited to,
reasonable attorney's fees and attorney's fees and cost incurred upon
appeal.
8. The Easement granted hereby and other provisions with this Agreement
shall run with the Land and it shall be binding upon, and inure to the
benefit of. the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, this Agreement has been signed as of the date first stated
above.
Signed, sealed and delivered in ARB PLYMOUTH PLAZA, LTD., a Florida
the presence of: Limited partnership
/s/ Leo J. Salvatori By: (Corporate Seal)
Witness No. 1 Signature REED DEVELOPMENT COMPANY,
A Florida corporation, as General Partner
Witness No. 1 Printed Name
/s/ Debra K. Blackwell By: /s/ Robert M. Reed
Witness No. 2 Signature Robert M. Reed, II, as President
Witness No. 2 Printed Name
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this 4th day of September,
2003 byRobert M. Reed II, as President of Reed Development Company, a Florida
Corporation, as General Partner of ABR PLYMOUTH PLAZA, LTD., a Florida limited
partnership, who Is personally known to me.
/s/ Leo J. Salvatori
Notary Public
TYPED, PRINTED OR STAMPED NAME OF NOTARY PUBLIC
My Commission Expires:
LEO J. SALVATORI
MY COMMISSION # CC 967892
EXPIRES: November 28,2004
Bonded Thru Notary Pubic Underwriters
DECADE COMPANIES INCOME
PROPERTIES, A LIMITED PARTNERSHIP, a
/s/ Nan Gregory Wisconsin limited partnership
Witness No. 1 Signature
By: Decade Companies, General Partner,
Witness No. 1 Printed Name A Wisconsin general partnership
/s/Patsy E. Trusal By: (Corporate Seal)
Witness No. 2 Signature Decade 80, Inc., a Wisconsin
Corporation, as General Partner of
Decade Companies
Witness No. 2 Printed Name
By: /s/ Jeffrey Keierleber
Jeffrey Keierleber, President
By: /s/ Jeffrey Keierleber
Jeffrey Keierleber, as General Partner
Of Decade Companies
STATE OF WISCONSIN FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 13TH day of
September, 2002 by Jeffrey Keierleber, as President of Decade 80, Inc., a
Wisconsin corporation, as General Partner of Decade Companies, as General
Partner of DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP, a
Wisconsin limited partnership, and individually, as general partner of Decade
Companies in its capacity of Decade Companies Income Properties, a Limited
Partnership, a Wisconsin limited partnership, on behalf of said corporation,
who [X] is personally known to me or who [ ] produced
as identification.
Nan Gregory
MY Commission DD084587
Expires August 01. 2005
/s/ Nan Gregory
Notary Public
TYPED, PRINTED OR STAMPED NAME OF NOTARY PUBLIC
My Commission Expires:
EXHIBIT "A"
LEGAL DESCRIPTION OF
PLYMOUTH PROPERTY
PHASE 11 LEGAL
r N
LEGAL, DESCRIPTION: PARCEL 2
A TRACT OF LAND {SING IN SECTION 30, TOWN" 28 SOUTH, RANGE 16 EAST,
CLEARWATER, PINELLAS COUNTY, FLORIDA, AND BEING MORE PARTICULARLY UESCRIL1E0
AS FOLIAf
COMMENCE AT THE CM1ER OF SAID SECTION 30. TMCE S.OOK2'IM FOR MOD FEET, ALONG
THE CENTERLWE OF U.S. HLGKWAY 19; THENCE N.0"5'13'Y,', FOR 100.00 FEET, TO
THE WIERS=DN OF THE SOUTFL RICHT`0F WAY LINE OF S.R. 580. AND THE WEST
RIGHT-OF-WAY UNE OF U.S. HI"AY 19 (A 200 FOOT RIGHT-OF-WAY), INEKCE ALONG
SAID Fdeul-OF-1fAY TAE FOLLOWING THREE (S) COURSES: 1) SAO'S?'15'E, FOR
134.49 FEET, TA A PAINT OF CURVATURE OF A CURVE CONCAVE TO THE NORTHEAST; 2)
THENCE SMTHEASTEAY ALONG THE ARC OF SAID CURVE HAWKG A RADIUS OF 2954.93 FEET,
CENTRAL Aii(YE OF 21"30'27", AM ARC LENGTH OF 1130.21 FEET, AND A CHORD
BEARING 5.11'07WE, FOR 1123.39 FEET. 3) THENCE CONTINUE SOUTHEASTERLY ALONG
THE AN OF SAID CURVE HALING A RADIUS OF 2464.93 FEET, CENTRAL. ANGLE OF
04'59'40', AN ARC t(NGTH OF 258.46 FEET, AND A CHARD BEARING 5.2,1'32'32"E
FOR 29M FEET, THENCE, LEAVING SAO RIGHT-OF-WAY UNE S.5361'47'YP, FOR 93,06
FEET; THENCE N.36V8'2", FOR 111..51) FEET; THENCE 55331'32'K FOR 22400 FEET:
THEXCE N.38'0t20"W, FOR 16.30 FEETMENCE S.53-51'32"W, FOR 201.65 FEET; THENCE
N.3fi'DS'23'W. FOR 160.00 FEET; THENCE SA311'32'W, FOR 53.52 FEET TO THE P0?1T
OF BEGLNNrNC; THENCE CONTINUE S.S3IOW25'W. A DISTANCE OF 157.20 FEET, TO A
PAINT ON THE EASTERLY RIGHT-OF-WAY LINE OF ENTERPRME ROAD: THENCE ALONG SAID
RIGHT-OF-WAY LINE N.5599'03'W, FOR 307.28 FEET TO THE POINT OF CURVATURE OF A
CURVE CONCAVE TO THE NORTHEAST; 2) THENCE NORTHWESTERLY ALONG THE ARC OF
SAID CURVE HAVING A RADIUS OF 270.00 FEET, CENTRAL ANGLE OF 4339'SO', AN ARC
LENGTH # 213.82 FEET. AND A CHORD SEARING N.32-010-W., FOR 2OL.09 FEET TO TK
POINT OF COMPOUND .
CURVATURE OF OF CURVE CONCAVE TO THE NORTHEAST, 3) THENCE NORTHKSTERLY ALONG
THE ARC OF SAID CURVE HAMNC A RADIUS OF 835.00 FEET, A r CENTRAL ANGLE
OF 0024'4(r, AN ARC LENGTH OF 3.99 FEET AND A CHORD BFrtRINC X.0946'5VW. FOR
5.49 FEET TO A PDlNT ON THE SOUTH LINE OF THE
PLAT OF OUNEOIN INDUSTRIAL PARK. AS RECORDED IN PLAT BOOK 64, PACE 76, OF THE
PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA; 74ENCE ALONG THE SOUTHERLY AND
EASTERLY LINES OF SAID PLAT THE FOLLowNC TWO (2) COURSES: 1) 5.69'S5'T3'E,
FOR 6.61 FEET; 2) THENCE N,OOTa4'4TE, FOR 167.02 FEET; T1iENCE, LEAVING
51110 PLAT, S.59'S5'13'E; FOR 220.00 FEET; THENCE SOUTH, FOR 294.36 FEET TO
THE POINT OF BECINNINC; HAVIING AN AREA OF
165663.3 SQUARE FEET, 3.80 ACRES MORE OR LESS r
0 Lfl r OD r
W W
EXHIBIT "B"
LEGAL DESCRIPTION OF
DECADE PROPERTY
PHASE I LEGAL
M O
a O .r l71 O H
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EXHIBIT "C"
Sketch
HWS\TRANSACT1Decade\Signage Easement Agreement. l.wpd
SEP 11 2002 17=36 FR QUARLES BRADY LLP 941 434 4939 TO 518132298313
SUMMONG LOTS
a
MortlhkSide
Y
r PI, MQI,JTy PLAZA
us. wRr.+~watn~ . e gL &#Jm n Services,lnc
0.EM'~ARR. awon s F 2 + w~ w - aw+rwart r. .
P.04i04
EXHIBIT10.53
This instrument prepared by,
and after recording return to:
Leo J. Salvatore, esquire
Quarles & Brady
4501 Tamiami Trail North
Suite 300
Naples, Florida 34103
PARKING EASEMENT AGREEMENT
THIS PARKING EASEMENT AGREEMENT (the "Agreement") is made and entered into
effective the 30th day of July, 2002 (the "Effective Date") by and between ABR
PLYMOUTH PLAZA, LTD., a Florida limited partnership (hereinafter referred to
as "Plymouth"); and DECADE COMPANIES INCOME PROPERTIES, A LIMITED
PARTNERSHIP, a Wisconsin limited partnership (hereinafter referred to as
"Decade").
WITNESSETH
WHEREAS, Plymouth is the owner and holder of a certain parcel of property
located in Clearwater, County of Pinellas, Florida, the legal description of
which is attached hereto as Exhibit A and incorporated herein by virtue of
this reference (the "Plymouth Property").
WHEREAS, Decade has effective on the Effective Date, acquired from Plymouth
ownership of the parcel of property contiguous to the Plymouth Property, the
legal description which is attached hereto as Exhibit B and Incorporated
herein by virtue of this reference (the "Decade Property").
WHEREAS, located upon the Decade Property is a parking garage, designed to
service both the Plymouth Property and the Decade Property (the "Parking
Garage").
WHEREAS, incident to the sale to Decade of the Decade Property, Plymouth has
reserved unto itself, and Decade does hereby confirm, give and grant, an
exclusive easement over and across certain portions of the Parking Garage,
and a non-exclusive easement for ingress and egress thereto, as further
described below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereto do hereby agree as
follows:
1. The above-captioned recitals are true and correct.
2. Plymouth does hereby reserve for itself, and Decade does hereby give,
grant and convey, an easement for the exclusive use by Plymouth,
Plymouth's service providers, Plymouth's contractors, and its tenants
(collectively, the "Plymouth Tenants") leasing a portion of any
building from time to time constructed on Plymouth Property, of one
hundred sixty-three (163) parking spaces (the "Plymouth Spaces") within
the Parking Garage, which Plymouth Spaces are as depicted on the sketch
attached hereto as Exhibit C attached hereto, and bearing parking space
numbers through inclusive. At no time shall Plymouth lease any of the
Plymouth Spaces to any tenant of any building located on the Decade
Property.
3. Plymouth does hereby reserve for itself, and Decade does hereby give,
grant and convey, a non-exclusive easement over and across all
driveways and sidewalks now or hereafter existing on the Decade
Property, for ingress and egress to and from the Parking Garage.
4. The term of this Agreement shall be 99 years from the Effective Date.
5. Plymouth and Decade have inspected the Parking Garage and accept the
same "AS IS" in its current condition without any express or implied
warranties by the other party. Decade shall be responsible for
operating and maintaining said Parking Garage, at the shared cost and
expense of Plymouth and Decade as further described below. Said
obligations shall include, but not be limited to, maintaining both the
interior and exterior of said Parking Garage; maintaining the striping
on the parking spaces, and the numbering thereof; and providing such
utility facilities as may be required to properly operate said Parking
Garage. In the event Decade should fail or refuse to perform any of its
maintenance or construction obligations herein within sixty (60) days of
Plymouth's written demand for such performance, Plymouth shall have the
right to enter the Parking Garage and perform said tasks. In that
event, Decade shall reimburse Plymouth Decade's Prorata Share of said
Maintenance Costs (as these terms are defined below) within sixty (60)
days of Plymouth's demand.
6. Plymouth and Decade do hereby agree that the parties shall share the
total cost (the "Maintenance Costs") of utilities, maintenance and all
re-construction, restoration, and/or capital improvements, at any time
during the term undertaken to any portion of the said Parking Garage or
the paved aprons, drive aisles, sidewalks, landscaping, or other
improvements which are a part of the Parking Garage, with Plymouth being
responsible for 163/352nd ("Plymouth's Prorata Share"), and Decade
responsible for 189/352nd ("Decade's Prorata Share"), of all said
maintenance costs in accordance with an annual budget prepared by
Decade, which budget shall meet with Plymouth's reasonable approval.
Said costs of maintenance and capital improvements shall include, but
not be limited to, costs of structural repairs, reasonable reserves for
structural repairs, landscaping, cleaning, painting and maintenance of
said Parking Garage and commercially reasonable management costs
incurred by Decade in the operation of said Parking Garage.
7. The parties hereto acknowledge that there presently is no elevator
servicing the Parking Garage. Plymouth agrees that no later than the
time of completion of construction of a primary building on the
Plymouth Property, Plymouth shall construct an elevator servicing said
Parking Garage, in accordance with plans and specifications approved by
both parties hereto, with the costs of construction of the same borne
exclusively by Plymouth. Maintenance of the elevator shall be a
Maintenance Cost, and borne by the parties hereto in accordance with
their respective Prorata Shares.
8. In addition to the foregoing, Plymouth does hereby agree that Plymouth
shall reimburse Decade for Plymouth's Prorata Share of the total cost
(the "Tax Costs") of real estate taxes and assessments attributable to
said Parking Garage.
9. Decade shall keep the Parking Garage insured against loss by fire or
other casualty in such amount as reasonably determined by Decade, and
shall name Plymouth as a loss payee thereon, with Plymouth responsible
for Plymouth's Prorata Share of the costs (the "Hazard Insurance
Costs") thereof. Plymouth shall not have any obligation to reimburse
Decade for the costs of any liability insurance maintained by Decade on
said Parking Garage unless Plymouth agrees to the contrary, as Plymouth
is responsible for providing Plymouth's own liability insurance, as set
forth below.
10. With respect to each calendar year or portion thereof during the term,
Plymouth shall pay Decade, in the manner hereafter provided, Decade's
Prorata Share of the total amount of the Maintenance Costs, the Tax
Costs, and the Liability Insurance Costs (collectively, "Total Parking
Garage Costs") paid or incurred by Landlord during such period. If
Plymouth shall be obligated to make payments as aforesaid with regard to
any partial calendar year during the term, the Total Parking Garage
Costs shall be prorated on the basis of the number of days during such
calendar year for which Plymouth is obligated to make such payments.
It is acknowledged and agreed that it will not be possible to determine
the actual amount of the Total Parking Garage Costs for a given
calendar year until after the end of such calendar year. Therefore,
until Plymouth's liability for Plymouth's Prorata Share of the Total
Parking Garage Costs shall have been finally determined for a particular
calendar year, Plymouth shall make payment on account of Total Parking
Garage Costs as follows:
(a) Commencing as of the Effective Date and continuing throughout the
term, Decade shall make a good faith estimate of Total Parking
Garage Costs for such calendar year and Plymouth's Prorata Share
thereof (hereinafter "Estimated Costs" and "Plymouth's Estimated
Prorata Share"), the budget for which meets with Plymouth's
reasonable approval. Plymouth shall pay to Decade in quarterly
installments an amount equal to one-fourth (1/4) of Plymouth's
Estimated Prorata Share of the Estimated Costs. Decade's
statement of Estimated Costs and Plymouth's Estimated Prorata
Share for the balance of 2002 is attached hereto as Exhibit D,
which estimates for calendar year 2002 are acknowledged and
accepted by the parties hereto. Such payments for any partial
quarter shall be paid in advance at the daily rate equal to the
quarterly payment divided by the number of days in the quarter
for which the same is due. On or about January 1 of each calendar
year in respect of which Plymouth shall be obligated to make
payments on account of the Total Parking Garage Costs during the
term, Decade shall furnish to Plymouth a statement for such
calendar year of Plymouth's Estimated Prorata Share and of the
Estimated Costs and thereupon, as of such January 1, Decade shall
make payments under this provision in accordance with such
statement.
(b) On or before April 1 in the year following the year in which the
Effective Date occurs and each April 1 thereafter during the
term, Decade shall furnish Plymouth with a statement setting
forth the total amount of Plymouth's Prorata Share of the Total
Parking Garage Costs for the preceding calendar year. If any such
statement shall show an overpayment or underpayment of Plymouth's
Prorata Share of Total Parking Garage Costs for the preceding
calendar year, any overpayment shall be refunded to Plymouth or
credited against payments due from Plymouth under this Agreement,
and the full amount of any underpayment shall be paid to Decade
by Plymouth not later than the date upon which the next quarterly
installment is due from Plymouth hereunder.
In the event any portion of the Total Parking Garage Costs is for
whatever reason not included within the Estimated Costs, such portion
shall be paid to Decade within thirty (30) days of Decade's demand.
Accompanying said demand shall be copies of such invoices evidencing
the costs incurred by Decade, for Plymouth's review and reasonable
approval.
In no event shall Decade be entitled to charge Plymouth management fees,
overhead, supervision or similar expenses, other than commercially
reasonable management fees, it being the express understanding of the
parties hereto that Plymouth's obligation to pay a prorate share of the
costs described herein shall be limited to those costs described herein
incurred by Decade incident to its ownership, operation, maintenance and
management of the Parking Garage.
11. Each party hereto shall keep in effect, at its sole expense, a
comprehensive general liability policy covering their respective
operations in the Parking Garage, providing coverage for bodily injury,
death and property damage with the combined single indemnity of One
Million Dollars ($1,000,000.00).
12. Anything to the contrary contained herein notwithstanding, Plymouth
shall additionally pay to Decade all amounts received by Plymouth from
any party other than the Plymouth Tenants in excess of Plymouth's
Prorata Share of Costs calculated on a per parking space basis. For
example, if Plymouth's Prorata Share of the Total Parking Garage Costs
for a particular year equals $30,000 then Plymouth must pay to Decade
all amounts it receives from any party other than the Plymouth Tenants
in excess of $15.34 per month ($30,000 divided by 163 parking spaces
divided by 12 months) for any of the Plymouth Spaces.
13.Plymouth shall not construct or demolish improvements within the Parking
Garage, make additions thereto, or structural changes or alterations to
said Parking Garage, without the prior written consent of Decade, which
consent shall not be unreasonably withheld. Any permitted work shall be
performed in a good and workmanlike manner, and at the sole expense of
Plymouth.
14. Decade shall not construct or demolish improvements within the Parking
Garage, which materially impedes or inhibits Plymouth's ability to
access the Plymouth Spaces, nor demolish the Parking Garage in its
entirety, without Plymouth's written consent, which consent shall not
be unreasonably withheld; provided, however, Plymouth may condition its
consent upon Decade promptly completing said work or, in the case of
demolition of the Parking Garage, promptly replacing the same with a
comparable structure.
15. Plymouth does hereby agree to hold Decade harmless, and indemnify
Decade, against any and all losses, claims, liabilities, actions,
causes of action, expenses, obligations, duties, liens and/or damages,
including, without limitation, reasonable attorneys' fees, that Decade
may incur or suffer, arising out of Plymouth's (a) use of the Plymouth
Spaces, or (b) failure to properly exercise the rights, duties and
obligations under this Agreement as required herein. as a result of
claims or demands by any contractor, subcontractor, materialmen,
laborer or other third person against the Parking Garage.
16. Decade does hereby agree to hold Plymouth harmless, and indemnify
Plymouth, against any and all losses, claims, liabilities, actions,
causes of action, expenses, obligations, duties, liens and/or damages,
including, without limitation, reasonable attorneys' fees, that
Plymouth may incur or suffer, arising out of Decade's (a) use of the
Decade Spaces, or (b) failure to properly exercise the rights, duties
and obligations under this Agreement as required herein or (c) Decade's
use of the Plymouth Spaces, as described herein.
17. In the event that the Plymouth Spaces should be damaged or destroyed as
a result of fire or any other casualty, Decade shall promptly commence
to repair or replace the same in as good of condition as the same
existed prior to such casualty, and shall diligently pursue said
repairs or replacement to completion.
18. Each party's rights hereunder are freely assignable to any third party
who acquires an interest in the Plymouth Property or Decade Property,
without notice to, or consent of, any other party hereto. Upon said
assignment, the assigning party shall be discharged from any and all
liabilities which accrue from and after the date of said assignment,
with the assigning party's successor being thereafter responsible for
all obligations hereunder. Plymouth shall have the right to pledge its
interest herein to any lender, without notice to, or consent of,
Decade. Plymouth's easement interest in and to the Parking Garage shall
be superior to any mortgage lien now or hereafter encumbering the
Decade Property. By joinder herein, the current mortgage lien holder,
Decade Mortgage Loan Partners, L.L.C., hereby subordinates the lien of
its mortgage and any collateral Loan Documents, to this Agreement.
19. In the event that the entire Parking Garage is taken by exercise of the
power of eminent domain, or is sold in the threat of eminent domain,
this Agreement shall terminate as of the date that possession is taken
by the condemner. The compensation award for the Parking Garage shall
be shared by Plymouth and Decade, in proportion to their respective
obligations to pay for the maintenance of the Parking Garage, as
described above. In the event that less than the entire Parking Garage
is taken by the exercise of the power of eminent domain, or sold under
the threat of eminent domain, then this Agreement shall not terminate.
In that event, any condemnation award shall be shared by the parties
hereto in direct proportion to the number of parking spaces that each
loses as a result of said condemnation action.
20. Any notice required or permitted under this Agreement may be personally
served or given and shall be deemed sufficiently given or served if
sent by registered or certified mail, with postage prepaid thereon, or
via recognized overnight courier service, to each party's respective
address. Either party may by like notice at any time, and from time to
time, designate a different address to which notices shall be sent.
Notices given in accordance with these provisions shall be deemed
received when mailed. Any payment required under this Agreement shall
be deemed made on the date mailed if sent by ordinary mail, with
postage prepaid thereon, or delivered to the recognized overnight
courier service, to the address of the recipient, provided, however, if
payment is by check it shall be deemed made on the date mailed only if
such check is paid by the bank upon which it is drawn upon presentation
for payment.
21. The occurrence of any one or more of the following shall constitute a
default by Plymouth:
(a) Failure by Plymouth to pay any amounts required to be paid by
Plymouth hereunder within fifteen (15) days of written notice
from Decade that Decade has not received Plymouth's payment;
(b) If proceedings are instituted in a court of competent
jurisdiction for the adjudication of Plymouth as bankrupt or
insolvent, or for the appointment of a receiver for the Plymouth
Property, and such proceedings are not dismissed and any
receiver, trustee, or liquidator appointed therein discharged
within ninety (90) days after the institution of said
proceedings; and
(c) The failure of Plymouth to perform any other of its covenants
under this Agreement for thirty (30) days after receipt of notice
from Decade.
In the event of a default by Plymouth hereunder, Plymouth hereby authorizes
and empowers Decade to:
(x) Bring such actions or proceedings for the recovery of any amounts
unpaid hereunder by Plymouth or to enforce any. other covenant or
condition herein contained; and/or
(y) Exercise any other right or remedy allowed by law to Decade;
and/or
(z) Suspends Plymouth's ability to utilize the Plymouth Spaces until
the default has been cured.
22. The failure by Decade to pay any amounts required to be paid by Decade
hereunder, or to perform any of its other obligations hereunder, within
sixty (60) days of when due or demanded, shall constitute a default by
Decade hereunder.
In the event of a default by Decade hereunder, Decade hereby authorizes and
empowers Plymouth to:
(x) Bring such actions or proceedings for the recovery of any amounts
unpaid hereunder by Decade or to enforce any other covenant or
condition herein contained; and/or
(y) Enter the Parking Garage and surrounding properties, and perform
such maintenance, repairs, construction or re-construction as
required of Decade herein, with each party paying its respective
Prorata Share of the applicable costs thereof; and/or
(z) Exercise any other right or remedy allowed by law to Plymouth.
23. No waiver of any default of a party hereunder shall be implied from any
omission by the other party to take any action on account of such
default if such default persists or is repeated, and no express waiver
shall affect any default other than the default specified in the
express waiver and that only for the time and to the extent therein
stated. One or more waivers of any breach of any covenant, term or
condition of this Agreement by a party shall not be construed as a
waiver of a subsequent breach of the same covenant, term or condition.
The consent or approval by one party to or of any act by the other party
requiring the party's consent or approval shall not be deemed to waive
or render unnecessary the party's consent or approval to or for any
subsequent similar act by the other party. The invalidity or
unenforceability of any provision hereof shall not affect or impair any
other provisions.
24. Except as otherwise herein provided, this Agreement shall be binding
upon and inure to the benefit of the parties hereto, their respective
heirs, executors, administrators, successors and assigns.
25. This Agreement does not create a joint venture or partnership
relationship between the parties hereto.
26. Both parties hereto shall obey, observe and promptly comply with all
rules, regulations, ordinances and laws which shall be applicable, now
or at any time during the term, to the Parking Garage and their
respective operations thereon and shall promptly comply with all
orders, rules, rulings and directives of any governmental authority or
agency having jurisdiction over the Parking Garage, including, without
limitation, existing and outstanding orders and requirements.
Neither party hereto shall store, use, discharge, or dispose of any
hazardous or toxic substances, pollutants, contaminants, or any other
substances (collectively, "Contaminants") regulated by any federal,
state, or local statute, ordinance, law, or regulation in or about the
Parking Garage. If either party reasonably believes that the other is
storing, using, discharging, or disposing of any Contaminants in or
about the Parking Garage, the party may require the other party, at the
other party's expense, to conduct such tests and inspections as may be
necessary to reasonably satisfy the complaining party that the terms of
this provision have not been violated. A party shall be solely
responsible for the costs of removing or cleaning any Contaminants found
in or about the Parking Garage and caused by that party.
27. Prior to commencing construction of vertical improvements on the
Plymouth Property, Decade may access the Plymouth Spaces for the
purposes stated herein and for any other purpose which does not
interfere with Plymouth's rights created herein. In the event all or
some portion of the Plymouth Spaces are utilized for thirty (30) days or
more in any calendar year, Decade shall be responsible for Plymouth's
Prorata Share of Total Parking Garage Costs for Plymouth Spaces so
utilized, for the term of their use. Decade acknowledges and agrees
that the use of Plymouth Spaces may be terminated by Plymouth at any
time, without prior notice to Decade.
28.The rights and easements created herein can be modified or terminated by
an instrument executed with the formalities of a deed, executed by both
the then fee simple owners of the Plymouth Property and the Decade
Property.
29.Either party may enforce this Agreement by appropriate legal action and,
should it prevail in such action, it shall recover as part of its cost
its reasonable attorneys' fees and related fees and its costs and
expenses in such action whether at the appellate level or otherwise.
30. The laws of the state of Florida shall govern the validity, enforcement
and interpretation of this Agreement. The obligations of the parties
are performable, and venue for any legal action arising out of this
Agreement shall lie in the county of Pinellas, State of Florida.
(SIGNATURES AND NOTARY ACKNOWLEDGEMENTS ON FOLLOWING TWO PAGES)
IN WITNESS WHEREOF, this Agreement has been signed to be effective as of the
Effective Date.
Signed, sealed and delivered in ABR PLYMOUTH PLAZA, LTD., a
Florida
the presence of: limited partnership
/s/ Leo J .Salvatori By:(Corporate Seal)
Witness No. 1 Signature REED DEVELOPMENT COMPANY,
A florida corporation, as General Partner
Witness No. 1 Printed Name
/s/ Debra K. Blackwell By: /s/Robert M. Reed
Witness No. 2 Signature Robert M. Reed, II, as President
Witness No. 2 Printed Name
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this 10th day of
September, 2002 by Robert M. Reed II, as President of Reed Development
Company, a Florida corporation, as General Partner of ABR PLYMOUTH PLAZA,
LTD., a Florida limited partnership, who Is personally known to me.
/s/ Leo J. Salvatori
Notary Public-
LEO J. SALVATORI
MY COMMISSION CC 967892
EXPIRES: NOVEMBER 28, 2004
BONDED THRU NOTARY PUBLIC UNDERWRITERS
TYPED, PRINTED OR STAMPED NAME OF NOTARY PUBLIC
My Commission Expires:
(SIGNATURES AND NOTARY ACKNOWLEDGEMENTS CONTINUED ON NEXT PAGE)
Witness No. 1 Sign
DECADE COMPANIES INCOME PROPERTIES, A LIMITED
PARTNERSHIP, a
/s/ Nan Gregory Wisconsin limited partnership
Witness No. 1 Signature
By: Decade Companies,.
General Partner,
Witness No. 1 Printed Name A Wisconsin general
partnership
/s/ Patsty E. Trusal By: (Corporate Seal)
Witness No. 2 Signature Decade 80, Inc., a Wisconsin
Corporation, as General partner of
Decade Companies
Witness No. 2 Printed Name By: /s/ Jeffrey Keierleber
Jeffrey Keierleber, President
By: /s/ Jeffrey Keierleber
Jeffrey Leierleber, as General
Partner of Decade Companies
STATE OF WISCONSIN FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 13 day of September,
2002 by Jeffrey Keierleber, as President of Decade 80; Inc., a Wisconsin
corporation, as General Partner of Decade Companies, as General Partner of
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP, a Wisconsin
limited partnership, and individually, as general partner of Decade Companies
in its capacity of Decade Companies Income Properties, a Limited Partnership,
a Wisconsin limited partnership, on behalf of said corporation, who [X] is
personally known to me or who [ ] produced as identification.
/s/ Nan Gregory
Notary Public
TYPED, PRINTED OR STAMPED NAME OF NOTARY PUBLIC
Nan Gregory
My Commission DD84587
Expires August 01, 2005
JOINDER
(Corporate Seal)
Decade Mortgage Loan Partners,L.L.C., a
Wisconsin limited liability company
By:
as
EXHIBIT "A"
LEGAL DESCRIPTION OF
PLYMOUTH PROPERTY
PHASE II LEGAL
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SEP 12 2002 09=33 FR QUARLES BRADY LLP 941 434 4939 TO 918132298313
P.04/05
A A 1
EXHIBIT "C"
Sketch
Omitted
A
H~JCS%TRAASACT,DecildNPnrking Easomout Agrccntont, l.apd
EXHIBIT "C"
Sketch
RUMTRANSACT"DecadeTarking Easement Agreement. l.wpd
EXHIBIT NUMBER 10.54
MORTGAGE DEED AND SECURITY AGREEMENT
THIS MORTGAGE INDENTURE, executed this 23rd day of November, 1992, by ABR
PLYMOUTH PLAZA, LTD., a Florida limited partnership ("Mortgagor"), as party
of the first part, and THE CHASE MANHATTAN BANK, N.A., a national banking
association, and its successors or assigns ("Mortgagee") (which term as used
in every instance shall include Mortgagee's successors and assigns), as party
of the second part;
W I T N E S S E T H:
That for valuable considerations, and also in consideration of the aggregate
sum of money named in that certain Promissory Note of even date herewith,
hereinafter referred to as the "Note", Mortgagor does grant, bargain, sell,
alien, remise, release, convey and confirm unto Mortgagee, in fee simple a
lien upon and security interest in that certain real estate, of which
Mortgagor is now seized and possessed and in actual possession, situate in
the County of Pinellas, State of Florida, which is described in Exhibit A
attached hereto. Hereinafter said real estate, buildings, improvements
(including improvements to be made hereafter), fixtures hereinbelow described
and located on said real estate are sometimes collectively referred to as the
"Premises".
TOGETHER with all of Mortgagor's gas and electrical fixtures, radiators,
heaters, space heaters, engines and machinery, boilers, ranges, elevators and
motors, bathtubs, sinks, water closets, basins, pipes, faucets and other air
conditioning, plumbing and heating fixtures, drapes, mirrors, mantles,
refrigerating plants, dishwashers and appurtenances, and all building
material and equipment now or hereafter delivered to the Premises and
intended to be installed therein; such other goods, equipment now or
hereafter delivered to the Premises and intended to be installed therein;
such other goods, equipment, chattels and personal property as are usually
furnished by landlords in letting premises of the character hereby conveyed
(or as hereafter improved) and all renewals or replacements thereof or
articles in substitution thereof and all of the estate right, title and
interest of Mortgagor in and to all property of any nature whatsoever, now or
THIS INSTRUMENT PREPARED BY AND RETURN T0:
Steven M. Samaha, Esquire
Annis, Mitchell, Cockey, Edwards & Roehn, P.A.
Post Office Box 3433
Tampa, Florida 33601
hereafter situated on the Premises or intended to be used in connection with
the operation thereof, all of which shall be deemed to be fixtures and an
accession to the freehold and a part of the realty as between the parties
hereto and all persons claiming by, through or under them and shall be deemed
to be a portion -of the security for the indebtedness herein mentioned and
secured by this Mortgage Deed.
TOGETHER with all and singular the rights, members and appurtenances
whatsoever, in any way belonging, relating or appertaining to any of the
Premises hereinabove mentioned or which hereafter shall in any way belong,
relate or be appurtenant thereto, whether now owned or hereafter acquired by
Mortgagor including but not limited to all of Mortgagor's sewer capacity
rights, and Mortgagor's rights under contracts, permits, licenses and all
other documents and payments affecting the Premises, and all rents, profits,
issues and revenues of the Premises from time to time accruing, whether under
leases or tenancies now existing or hereafter created, reserving only the
right to Mortgagor to collect the same so long as Mortgagor is not in default
hereunder (subject to the qualification set forth in that certain Collateral
Assignment of Leases, Rents and Contract Rights of even date herewith between
Mortgagor and Mortgagee) and so long as the same are not subjected to
garnishment levy, attachment or lien. In addition, Mortgagor hereby assigns,
transfers and conveys to Mortgagee, its successors and assigns, all of
Mortgagor's right, title and interest in, to and under. all leases now or
hereafter leasing or affecting the Premises or any part hereof.
TO HAVE AND TO HOLD the Premises and all parts, rights, members and
appurtenances thereof, to the use, benefit and behalf of Mortgagee, its
successors and assigns in fee simple forever, and Mortgagor covenants that
Mortgagor is lawfully seized and possessed of the Premises in fee simple and
has good right to convey the same, that the same are unencumbered excepting
taxes accruing subsequent to December 31, 1992, and those certain exceptions
appearing on Mortgagee's Title Insurance Policy given in connection herewith
and specifically approved by Mortgagee, and that Mortgagor will warrant and
defend the title thereto against the claims of all persons whomsoever, except
as hereinafter expressly provided.
PROVIDED ALWAYS that if Mortgagor shall pay unto Mortgagee all sums required
under the terms of the Note, which Note is in the original principal amount
of Two Million Eight Hundred Ninety Six Thousand and No/100 Dollars
($2,896,000.00) and is due and payable on November 22, 1997, as may be
extended from time to time, and shall comply with and abide by each and every
one of the stipulations, agreements, conditions and covenants of the Loan
Documents (as such term is defined in subparagraph 2.2(b) hereof), then in
such event this mortgage Deed and Security Agreement and the estate hereby
created shall cease and be null and void.
Mortgagor covenants with Mortgagee as follows:
ARTICLE I.
20. Payment of Indebtedness. Mortgagor will pay the Note according to the
tenor thereof and all other sums secured hereby promptly as the same
shall become due.
1.2 Monthly Deposits. To further secure the payment of the taxes and
assessments hereinafter referred to and the premiums on the insurance
hereinafter referred to, Mortgagor will, at the request of Mortgagee,
deposit with Mortgagee on the first day of each and every month a sum
which, in the estimation of Mortgagee, shall be equal to one-twelfth of
the annual taxes, assessments and insurance premiums; said deposits to
be held by Mortgagee free of interest, and free of any liens or claims
on the part of creditors of Mortgagor and as part of the security of
Mortgagee, and to be used by Mortgagee to pay current taxes and
assessments and insurance premiums on the Premises as the same accrue
and are payable. Said deposits shall not be, nor be deemed to be, trust
funds but may be commingled with the general funds of Mortgagee. If
said deposits are insufficient to pay the taxes and assessments and
insurance premiums in full as the same become payable, Mortgagor will
deposit with Mortgagee such additional sum or sums as may be required
in order for Mortgagee to pay such taxes and assessments and insurance
premiums in full. Upon any default hereunder or under the Note,
Mortgagee may, at its option, apply any money in the fund resulting
from said deposits to the payment of the indebtedness secured hereby in
such manner as it may elect.
1.3 Taxes, Liens and Other Charges.
1. In the event of the passage of any state, federal, municipal or other
governmental law, order, rule or regulation, subsequent to the date
hereof, in any manner changing or modifying the laws now in force
governing the taxation of debts secured by mortgages or the manner of
collecting taxes so as to affect adversely Mortgagee, Mortgagor will
promptly pay any such tax; if Mortgagor fails to make such prompt
payment or if any such state, federal, municipal or other governmental
law, order, rule or regulation prohibits Mortgagor from making such
payment or would penalize Mortgagee from making such payment or would
penalize Mortgagee if Mortgagor makes such payment, then the entire
balance of the principal sum secured by this Mortgage Deed and all
interest accrued thereon shall, without notice, immediately become due
and payable at the option of Mortgagee.
2. Mortgagor will pay, before the same become delinquent, all taxes, liens,
assessments, and charges of every character already levied or assessed
or that may hereafter be levied or assessed upon or against the
Premises and all utility charges, whether public or private; and upon
demand will furnish Mortgagee receipted bills evidencing such payment.
3. Mortgagor will not suffer any mechanic's, materialmen's, laborer's,
statutory or other lien which might or could be prior to or equal to
the security interest and mortgage liens of this Mortgage Deed to be
created or to remain outstanding upon any part of the Premises.
1.4 Insurance. Mortgagor will keep all buildings and improvements whether
now standing on the Premises or hereafter erected and all fixtures and
personal property located in and on the Mortgaged Premises,
continuously insured in an amount no less than full insurable value
which coverage shall insure the Premises against loss or damage by fire
and by the perils covered by extended coverage and against such other
hazards as Mortgagee, in its sole discretion, shall from time to time
require, for the benefit of Mortgagee. All such insurance at all times
will be in an insurance company or companies in such amounts and with
terms acceptable to Mortgagee, with loss, if any, payable to Mortgagee
as its interest may appear, pursuant to a noncontributory mortgagee
clause which shall be satisfactory to Mortgagee; and forthwith upon the
issuance of such policies Mortgagor will deliver to Mortgagee receipts
for the premiums paid thereon and certificates of insurance and
certified copies of such policies. Any policies furnished Mortgagee
shall become its property in the event Mortgagee becomes the owner of
the Premises by foreclosure or otherwise. Mortgagee is hereby
authorized and empowered, at its option, to adjust or compromise any
loss under any insurance policies on the Premises, and to collect and
receive the proceeds from any such policy or policies. Each insurance
company is hereby authorized and directed to make payment for all such
losses to Mortgagor and Mortgagee jointly. in case of loss under any
such policy of insurance, Mortgagee may apply the net proceeds to the
payment of the indebtedness hereby secured, whether due or not, or
Mortgagee may require all buildings and improvements to be repaired or
replaced by the use of said net proceeds. Additionally, Mortgagor shall
maintain public liability insurance in such amounts as Mortgagee shall
require.
1.5 Care of Premises.
1. Mortgagor will keep the improvements now or hereafter erected on the
Premises in good condition and repair, will not commit or suffer any
waste and will not do or suffer to be done anything which will increase
the risk of fire or other hazard to the Premises or any part thereof.
2. Mortgagor will not remove or demolish nor alter the design or
structural character of any building (now or hereafter erected),
fixture or chattel which are part of the security or other part of the
Premises without the prior written consent of Mortgagee.
3. If the Premises or any part thereof is damaged by fire or any other
cause, Mortgagor will give immediate written notice of the same to
Mortgagee.
4. Mortgagee or its representative is hereby authorized to enter upon and
inspect the Premises at any time during normal business hours.
5. Mortgagor will promptly comply with all present and future laws,
ordinances, rules and regulations of any governmental authority
affecting the Premises or any part thereof.
6. If all or any part of the Premises shall be damaged by fire or other
casualty, Mortgagor will, upon request of Mortgagee, promptly restore
the Premises to the equivalent of its condition immediately prior to
such damage, and if a part of the Premises shall be damaged through
condemnation, Mortgagor will, upon request of Mortgagee, promptly
restore, repair or alter the remaining part of the Premises in a manner
satisfactory to Mortgagee.
1.6 Further Assurances; Modifications. At any time, and from time to time,
upon request by Mortgagee, Mortgagor will make, execute and deliver or
cause to be made, executed and delivered, to Mortgagee, any and all
other further instruments, certificates and other documents as, may, in
the opinion of Mortgagee, be necessary or desirable in order to
effectuate, complete, or perfect or to continue and preserve (i) the
obligations of Mortgagor under the Note, (ii) the security interest of
this Mortgage Deed, and (iii) the mortgage lien hereunder. Upon any
failure by Mortgagor so to do, Mortgagee may make, execute and record
any and all such instruments, certificates and documents for and in the
name of Mortgagor and Mortgagor hereby irrevocably appoints Mortgagee
the agent and the attorney in fact of Mortgagor so to do.
1.7 Leases Affecting the Premises. Except in the ordinary course of
business and utilizing a substantially similar form previously approved
by Mortgagee, Mortgagor shall not make any lease covering all or any
part of the Premises without first submitting the proposed lease to
Mortgagee and obtaining Mortgagee's approval of the form and substance
thereof. Mortgagor shall perform all covenants to be performed by the
landlord under any and all leases now or hereafter on the Premises or
any part thereof and shall not, without the prior written consent of
Mortgagee, cancel, surrender or modify any such lease. Mortgagor will
furnish Mortgagee signed copies of all leases on the Premises,.or any
part thereof promptly after' their' execution Upon request of
Mortgagee, Mortgagor shall, by written instrument in form and substance
satisfactory to Mortgagee, assign to Mortgagee the landlord and lessor
interest in each and every lease hereafter entered into by Mortgagor
leasing all or any part of the Premises. The terms "lease" and "leases"
as used in this paragraph 1.7 shall include all tenancies.
1.8 Expenses. In addition to the expenses described in subparagraph 2.5(b)
hereof, Mortgagor will pay or reimburse Mortgagee for all reasonable
attorney's fees, costs and expenses, including those in connection with
appellate proceedings, incurred by Mortgagee in any proceedings
involving the estate of a decedent or an insolvent, or in any action,
legal proceeding or dispute of any kind An which Mortgagee is made a
party, or appears as party plaintiff of defendant, affecting the
indebtedness secured hereby, this Mortgage Deed or the interest created
herein, or the Premises, including but not limited to the exercise of
the power of sale of this Mortgage Deed, any condemnation action
involving the Premises or any action to protect the security hereof;
and any such amounts paid by Mortgagee shall be secured by this
Mortgage Deed.
1.9 Estoppel Affidavits. Mortgagor, upon ten days' prior written notice,
shall furnish Mortgagee a written statement, duly acknowledged, setting
forth the unpaid principal of, and interest on, the indebtedness
secured hereby and whether or not any off-sets or defenses exist
against such principal and interest.
1.10 Subrogation. Mortgagee shall be subrogated to the claims and liens of
all parties whose claims or liens are discharged or paid with the
proceeds of the indebtedness secured hereby.
1.11 Performance by Mortgagee of Defaults by Mortgagor. if Mortgagor shall
default in the payment of any tax, lien, assessment or charge levied or
assessed against the Premises; in the payment of any utility charge,
whether public or private; in the payment of any insurance premium; in
the procurement of insurance coverage and the delivery of the insurance
policies required hereunder; in the performance of any covenant, term
or condition of any leases affecting all or any part of the Premises;
or in the performance or observance of any covenant, condition or term
of this Mortgage Deed; then Mortgagee, at its option, may perform or
observe the same, and all payments made or costs incurred by Mortgagee
in connection therewith, shall be secured hereby and shall be, without
demand, immediately repaid by Mortgagor to Mortgagee with interest
thereon at the maximum rate provided by law. Mortgagee shall be the
sole judge of the legality, validity and priority of any such tax,
lien; assessment, charge, claim, premium and obligation, of the
necessity for any such actions and of the amount necessary to be paid
in satisfaction thereof. Mortgagee is hereby empowered to enter and to
authorize others to enter upon the Premises or any part thereof for the
purpose of performing or observing any such defaulted covenant,
condition or term, without thereby becoming liable to or any other
person in possession holding under Mortgagor.
1.12 Condemnation. If all or any part of the Premises shall be damaged or
taken through condemnation (which term when used in this Mortgage Deed
shall include any damage or taking by any governmental authority and
any transfer by private sale in lieu thereof), either temporarily or
permanently, the entire indebtedness secured hereby shall, at the
option of Mortgagee, become immediately due and payable. Mortgagee
shall be entitled to all compensation, awards, and other payments or
relief thereof and is hereby authorized, at its option, to commence,
appear in and prosecute, in its own or mortgagor's name, any action or
proceeding relating to any condemnation, and to settle or compromise
any claim in connection therewith. All such compensation, awards,
damages, claims, rights of action and proceeds and the right thereto
are hereby assigned by Mortgagor to Mortgagee, who after deducting
therefrom all its expenses, including attorney's fees, may release any
monies so received by it without affecting this Mortgage Deed and may
apply the same in such manner as Mortgagee shall determine, to the
reduction of the sum secured hereby and any balance of such monies then
remaining shall be paid to Mortgagor. Mortgagor agrees to execute such
further assignment of any compensation, awards, damages, claims, rights
of action and proceeds as Mortgagee may require.
1.13 Monthly Operating Statements.Mortgagor shall maintain accurate records
of Mortgagor's income and expenses in connection with the operation of
the Premises and shall promptly furnish to Mortgagee on or before the
5th day of each month monthly statements for the previous month,
certified by Mortgagor, itemizing all material information with respect
to the operation of the Premises, including, but not limited to,
sources of income, expenses, occupancy, list of tenants, gross sales of
tenants, if any, on percentage lease, and balance sheets of the
Premises for the previous .month. If a default occurs hereunder, and
while said default continues, Mortgagor agrees to permit Mortgagee, on
demand, to inspect the books and accounts of Mortgagor relating to the
Premises. Failure to furnish said statements or permit inspection of
books shall constitute a default by Mortgagor hereunder.
1.14 Environmental Condition of Property. Mortgagor represents to Mortgagee
that the Premises at all times hereafter will continue to be in full
compliance with all federal, state and local environmental laws and
regulations, including but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986
("SARA"), the Federal Water Pollution and Control Act, the Federal
Clean Water Act, the National Environmental Policy Act, the Resource
Conservation and Recovery Act of 1976 ("RCRA"), the Hazardous Material
Transportation Act, the Federal Clean Air Act, Chapters S76 ("Pollutant
Discharge Prevention and Removal"), 377 ("Energy Resource"), and 403
("Environmental Control") of Florida Statutes, and rules related
thereto including Chapters, 17, 27 and 40 of the Florida Administrative
Code, (hereinafter together with any amendments thereto "Environmental
Laws").
1.15 Accessibility Laws. Mortgagor at all times shall maintain the Premises
in full compliance with all federal, state or municipal laws,
ordinances, rules and regulations currently in existence or hereinafter
enacted or rendered governing accessibility for the disabled or
handicapped, including, but not limited to, The Architectural Barriers
Act of 1968, The Rehabilitation Act of 1973, The Fair Housing Act of
1988, The Americans with Disabilities Act, and The Florida Accessibility
Code, and all regulations and guidelines promulgated under any of the
foregoing, as the same may be amended from time to time (collectively
the "Accessibility Laws").
ARTICLE II.
2.1 Due on Sale or Further Encumbrance Clause. In determining whether or
not to make the loan secured hereby, Mortgagee examined the
credit-worthiness of Mortgagor,. found it acceptable and relied and
continues to rely upon same as the means of repayment of the loan.
Mortgagee also evaluated the background and experience of Mortgagor in
owning and operating property such as the Premises, found it acceptable
and relied and continues to rely upon same as the means of maintaining
the value of the Premises which is Mortgagee's security for the loan.
Mortgagor is a business person or entity well-experienced in borrowing
money and owning and operating property such as the Premises, was ably
represented by a licensed attorney at law in the negotiation and
documentation of the loan secured hereby and bargained at arm's length
and without duress of any kind for all of the terms and conditions of
the loan, including this provision. Mortgagor recognizes that Mortgagee
is entitled to keep its loan portfolio at current interest rates by
either making new loans at such rates or collecting assumption fees
and/or increasing the interest rate on a loan, the security for which
is purchase by a party other than the original Mortgagor. Mortgagor
further recognizes that any secondary or junior financing placed upon
the Premises (a) may divert funds which would otherwise be used to pay
the Note secured hereby; (b) could result in acceleration and
foreclosure by any such junior encumbrances which would force Mortgagee
to take measures and incur expenses to protect its security; (c) would
detract from the value of the Premises should Mortgagee come into
possession thereof with the intention of selling same; and (d) impair
Mortgagee's right to accept a deed in lieu of foreclosure, as a
foreclosure by Mortgagee would be necessary to clear the title to the
Premises.
In accordance with the foregoing and for the purposes of (i) protecting
Mortgagee's security bot_ of repayment by Mortgagor and of value of the
Premises; (ii) giving, Mortgagee the full benefit of its bargain and contract
with Mortgagor; (iii) allowing Mortgagee to raise the interest rate and/or
collect assumption fees; and (iv) keeping the Premises free of subordinate
financing liens, Mortgagor agrees that if this paragraph be deemed a
restraint on alienation, that it is a reasonable one and that any sale,
conveyance, assignment, further encumbrance or other transfer of title to the
Premises or any interest therein (whether voluntarily or by operation of
law) without Mortgagee's prior written consent, which may be withheld for any
reason, shall be an event of default hereunder. For the purpose of, and
without limiting the generality of, the preceding sentence, the occurrence at
any time of any of the following events shall be deemed to be an unpermitted
transfer of title to the Premises and therefore an event of default
hereunder:
(a) any sale, conveyance, assignment, or other transfer of or the grant of
a security interest in, all or any part of the title to the Premises;
(b) any sale, conveyance, assignment, or other transfer of, or the grant of
a security interest in, any partnership interest in Mortgagor (except
such change as would occur by death); however, limited partners may
transfer their interests solely for bona fide estate planning purposes
as long as Mortgagor provides Mortgagee with copies of all assignment
documents at least ten (10) days before the actual transfer takes
place;
(c) any sale, conveyance, assignment or other transfer of, or the grant of
a security interest in, any share of stock of any corporation directly
or indirectly controlling Mortgagor, including but not limited to
Mortgagor's general partner, except such change as would occur by
death);
(d) any new or additional liabilities without the prior written consent of
Mortgagee.
Any consent by Mortgagee, or any waiver of an event of default, under this
Paragraph shall not constitute a consent to, or waiver of any right, remedy
or power of Mortgagee upon a subsequent event of default under this
Paragraph.
2.2 Default. A default shall have occurred hereunder if:
(a) Mortgagor shall fail to pay in full as and when due and payable any
installment of principal, interest, late charges or escrow deposits as
required by the Note, this Mortgage Deed and otherwise; or
(b) Mortgagor shall fail duly to observe on time any other covenant,
condition or agreement of this Mortgage Deed or of any other instrument
evidencing, securing or executed in connection with the indebtedness
secured hereby, including but not limited to, leases as specifically
required in accordance with Section 1.7 hereof (herein this Mortgage
Deed and said other instruments are sometimes collectively called the
"Loan Documents"); or
(c) Any warranties or representations made or agreed to be made in any of
the Loan Documents shall be breached by Mortgagor or shall prove to be
false or misleading; or
(d) Any lien for labor or material or otherwise shall be filed against the
Premises; or
(e) Any suit shall be filed against Mortgagor which, if adversely
determined, could substantially impair the ability of Mortgagor to
perform each and every one of its obligations under and by virtue of
the Loan Documents; or
(f ) A levy shall be made under any process on, or a receiver be appointed
for, the Premises or any other property of Mortgagor; or
(g) Mortgagor or its general partner shall file a voluntary petition in
bankruptcy, or any other petition or answer seeking or acquiescing in
any reorganization, arrangement, composition, readjustment, liquidation
or similar relief for Mortgagor or Mortgagor's general partner under
any pres-rt or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for
debtor; or
(h) Mortgagor shall seek or consent to or acquiesce in the appointment of
any trustee, receiver or liquidator of Mortgagor or of all or any part
of the Premises or of any or all of the rents, revenues, issues,
earnings, profits or income thereof; or
(i) Mortgagor shall make any general assignment for the benefit of
creditors; or
(j) In any legal proceeding Mortgagor shall be alleged to be insolvent or
unable to pay Mortgagor's debts as they become due; or
(k) Mortgagor shall do, or shall omit to do, any act, or any event shall
occur, as a result of which any obligation of Mortgagor, not arising
hereunder, may be declared immediately due and payable by the holder
thereof; or
(l) Mortgagor shall commit an event of default under the terms of any of
the leases affecting all or any part of the Premises; or
(m) Mortgagor, without the prior written consent of Mortgagee s voluntarily
or by operation of law, shall sell, transfer, convey or assign all or
any part of the legal or equitable title to the Premises, or any part
of, or interest in, the Premises; or
(n) Any individual Mortgagor, or any other person primarily or secondarily
obligated for the payment of the indebtedness evidenced by the Note,
shall die, become insolvent or declare a voluntary or involuntary
petition of bankruptcy; or
(o) Mortgagor, without the prior written consent of Mortgagee, voluntarily
or by operation of law, shall transfer, convey or assign the Premises,
or any part of, or interest in, the Premises as security for an
indebtedness other than for the indebtedness secured hereby; or
(p) Mortgagor, without the prior written consent of Mortgagee, shall rent
or lease any of the buildings or portions thereof, except in the
ordinary course of business; or
(q)Mortgagee shall reasonably suspect the occurrence of any one or more of
the above said defaults and Mortgagor, upon the request of Mortgagee,
shall fail to provide evidence reasonably satisfactory to Mortgagee
that such default has not in fact occurred.
For the purposes of this paragraph 2.2, the term "Mortgagor" shall be
construed as any one or more of the parties comprising Mortgagor.
2.3 Acceleration of Maturity. If a default shall have occurred hereunder,
then the whole unpaid principal sum of the indebtedness secured hereby
with interest accrued thereon shall, at the option of Mortgagee, become
due and payable without notice or demand, time being of the essence of
this Mortgage Deed and of the Note secured hereby; and no omission on
the part of Mortgagee to exercise such option when entitled so to do
shall be considered as a waiver of such right.
2.4 Right of Lender to Enter and Take Possession.
(a) If any default shall have occurred and be continuing, Mortgagor, upon
demand of Mortgagee, shall forthwith surrender to Mortgagee the actual
possession of the Premises and if, and to the extent, permitted by law,
Mortgagee may enter and take possession of the Premises and may exclude
Mortgagor and Mortgagor's agents and employees wholly therefrom. In the
event Mortgagee exercises its right pursuant to this subparagraph (a),
Mortgagee shall be deemed to be acting as agent of Mortgagor and not as
owner of the Premises.
(b) For the purpose of carrying out the provisions of this paragraph 2.4,
Mortgagor hereby constitutes and appoints Mortgagee the true and lawful
attorney in fact of Mortgagor to do and perform, from time to time, any
and all actions necessary and incidental to such purpose and does, by
these presents, ratify and confirm any and all actions of said attorney
in fact in the Premises.
(c) Whenever all such defaults have been cured and satisfied, Mortgagee
shall surrender possession of the Premises to Mortgagor, provided that
the right of Mortgagee to take possession, from time to time, pursuant
to subparagraph 2.4(a) shall exist if any subsequent default shall
occur and be continuing.
(d)Mortgagor shall have the opportunity to cure any non monetary default as
soon as reasonably possible but no more than thirty (30) days after
receiving written notice of the non-monetary default from Mortgagee.
2.5 Appointment of a Receiver and Foreclosure.
(a)If a default shall have occurred hereunder, then the whole debt secured
by this Mortgage Deed, with all interest thereon, and all other amounts
hereby secured shall, at the option of Mortgagee, become immediately
due and payable, and may forthwith or at any time thereafter be
collected by suit at law, foreclosure of or other proceeding upon this
Mortgage Deed or by any other proper, legal or equitable procedure
without declaration of such option and without notice.
(b) In any suit to foreclose the lien hereof, there shall be allowed and
included as additional indebtedness in the decree for sale all
expenditures and expenses which may be paid or incurred by or on behalf
of Mortgagee for attorneys' fees, appraisers' fees, outlays for
documentary and expert evidence, stenographers' charges, publication
costs and costs (which may be estimated as to items to be expended
after entry of the decree) of procuring all such abstracts of title,
title searches and examinations, title insurance policies, and similar
data and assurances with respect to title as Mortgagee may deem to be
reasonably necessary either to prosecute such suit or to evidence to
bidders at any sale which may be had pursuant to such decree the true
condition of the title to or the value of the Premises. All
expenditures and expenses of the nature in this paragraph mentioned
shall become so much additional debt secured hereby and shall be
immediately due and payable with interest thereon at the maximum rate
provided by law, when paid or incurred by Mortgagee in connection with
(i) any proceeding, including foreclosure, probate and bankruptcy
proceedings,. to which it shall be a party, either as plaintiff,
claimant, or defendant, by reason of this Mortgage Deed, or any
indebtedness hereby secured, (ii) preparations for the commencement of
any suit for the foreclosure hereof after accrual of such right to
foreclose whether or not actually commenced, or (iii) preparations for
the defense of any threatened suit or proceeding which might affect the
Premises or the security hereof, whether or pot actually commenced.
(c) Upon, or at any time after, the filing of a complaint to foreclose this
Mortgage Deed, the court in which such complaint is filed may appoint a
receiver of the Premises. Such appointment may
be made either before or after sale, without notice, without regard to
the solvency or insolvency of Mortgagor at the time of application for
such receiver and without regard to the then value of the Premises.
Such receiver shall have power to collect the rents, issues and profits
of the Premises during the pendency of such foreclosure suit, and in
case of a sale and a deficiency, during the full statutory period of
redemption, if any, whether there be redemption or not, as well as
during any further times when Mortgagor except for the intervention of
such receiver, would be entitled to collect such rents, issues and
profits, and all other powers which may be necessary or are usual in
such cases for the protection, possession, control, management and
operation of the Premises during the whole of said period.
(d) Mortgagor shall deliver to Mortgagee at any time on its request, all
agreements for deed, contracts, leases, abstracts, title insurance
policies, muniments of title, surveys and other papers relating to the
Premises, and in case of foreclosure thereof and failure to redeem, the
same shall be delivered to and become the property of the person
obtaining a deed to the Premises by reason of such foreclosure.
2.6 Discontinuance of Proceedings and Restoration of the Parties. In case
Mortgagee shall have proceeded to enforce any right or remedy under
this mortgage Deed by receiver, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason or
shall have been determined adverse to Mortgagee, then and in every such
case Mortgagor and Mortgagee shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of
Mortgagee shall continue as if no such proceeding had been taken.
2.7 Remedies Cumulative. No right, power or remedy conferred upon or
reserved by Mortgagee by this Mortgage Deed is intended to be exclusive
of any other right, power or remedy, but each and every such right,
power and remedy shall be cumulative and concurrent and shall be in
addition to any other right, power and remedy given hereunder or now or
hereafter existing at law or in equity or by statute.
2.8 Stamp and Excise Tax. It is contemplated that Mortgagor will pay
documentary stamp taxes applicable to the full face amount of the Note.
If any additional stamp or excise tax shall become applicable with
respect to this Mortgage, the Note, any loan or credit extended
hereunder, or any security agreement, guaranty, the loan agreement or
other document, Mortgagor shall promptly pay such tax in full including
interest and penalties, if any) and shall hold Mortgagee harmless with
respect thereto. Mortgagor's liability under this paragraph 2.8 will
survive the repayment of indebtedness under the Note.
ARTICLE III.
3.1 Successors and Assigns Included in Parties. Whenever in this Mortgage
Deed one of the parties hereto is named or referred to, the heirs,
legal representatives, successors and assigns of such parties shall be
included and all covenants and agreements contained in this indenture
by or on behalf of Mortgagor and by or on behalf of Mortgagee shall
bind and inure to the benefit of their respective heirs, legal
representatives, successors and assigns, whether so expressed or not.
Provided, however, that Mortgagor shall have no right to assign its
obligations hereunder without the prior written consent of Mortgagee.
3.2 Headings. The headings of the sections, paragraphs and subdivisions of
this Mortgage Deed are for the convenience of reference only, are not
to be considered a part hereof and shall not limit or otherwise affect
any of the terms hereof.
3.3 Invalid Provisions to Affect No Others. If fulfillment of any provision
hereof or any transaction related hereto or to the Note, at the time
performance of such provisions shall be due, shall involve transcending
the limit of validity prescribed by law, then ipso facto, the
obligation to be fulfilled shall be reduced to the limit of such
validity; and if any clause or provision herein contained operates or
would prospectively operate to invalidate this Mortgage Deed in whole
or in part, then such clause or provision only shall be held for
naught, as though not herein contained, and the remainder of this
Mortgage Deed shall remain operative and in full force and effect.
Notwithstanding any provision contained herein, the total liability of
Mortgagor for payment of interest, including service charges, penalties
or any other fees pursuant to paragraph 1.11, subparagraph 2.4(b) or
otherwise shall not exceed the maximum amount of such interest
permitted by applicable law to be charged, and if any payments by
Mortgagor include interest in excess of such maximum amount, Mortgagee
shall apply such excess to the reduction of the unpaid principal amount
due and pursuant hereto.
3.4 Number and Gender. Whenever the singular or plural number, masculine or
feminine or neuter gender is used herein, it shall equally include the
other.
ARTICLE IV.
4.1 Notice. Any notice or other communication required or permitted to be:
given hereunder shall be sufficient if in writing and delivered in
person or sent by United States Certified Mail, postage prepaid, to the
parties being given such notice at the following addresses:
Mortgagor: 695 Broad Avenue South Naples, FL 33940
Attn: Robert M. Reed, II
With a copy to: Quarles & Brady Suite 300
4501 Tamiami Trail North Naples, FL 33940
Attn: Leo J. Salvatori, Esq.
Mortgagee: 101 Park Avenue
New York, New York 10178.
Attn: Robert J. Persico
With a copy to: Annis, Mitchell, Cockey, Edwards & Roehn
P. O. Box 3433 Tampa, FL 33601
Attn: Steven M. Samaha, Esq.
Any party may change said address by giving the other parties hereto notice
of such change of address. Notice given as hereinabove provided shall be
deemed given on the date of its deposit in the United States Mail and, unless
sooner received, shall be deemed received by the party to whom it is
addressed on the third calendar day following the date on which said notice
is deposited in the mail.
ARTICLE V.
5.1 Future Advances. It is agreed that this Mortgage Deed shall also secure
such future or additional advances as may be made by Mortgagee at its
option to Mortgagor, or its successor in title, for any purpose,
provided that all those advances are to be made within twenty years
from the date of this Mortgage Deed,.or within such lesser period to
time as may be provided hereafter by law as a prerequisite for the
sufficiency of actual notice or record notice of the optional future or
additional advances as against the rights of creditors or subsequent
purchasers for valuable consideration. The total amount of indebtedness
secured by this Mortgage Deed may decrease or increase from time to
time, but the total unpaid balance so secured at any one time shall not
exceed the maximum principal amount of $5,792,000.00,,plus interest,
and any disbursements made for the payment of taxes, levies or
insurance on the Premises with interest on those disbursements. If,
pursuant to Florida Statutes Section 697.04, Mortgagor files a notice
specifying the dollar limit beyond, which future advances made pursuant
to this Mortgage, Deed will not be secured by this Mortgage Deed, then
Mortgagor shall, within one day of filing such no ice, notify Mortgagee
and its counsel by certified mail pursuant to Section 4.1 of this
Mortgage Deed. In addition, such a filing shall constitute a default
hereunder.
5.2 Security Agreement. This instrument also creates a security interest in
favor of Mortgagee under the Florida Uniform Commercial Code, and
Mortgagee shall also have all the rights and remedies of a secured
party under the Florida Uniform Commercial Code, and without limitation
upon or in derogation of the rights and remedies created and accorded
to Mortgagee by this Mortgage Deed pursuant to the common law or any
other laws of. the State of Florida or any other jurisdiction, it being
understood that the rights and remedies of Mortgagee under the Florida
Uniform Commercial Code shall be cumulative and in addition to all
other rights and remedies of Mortgagee arising under the common law or
any other laws of the State of Florida or any other jurisdiction.
5.3 Extension/Partial Release. Provided that Mortgagor properly extends the
Maturity Date pursuant to the terms of the Note, Mortgagee shall
partially release the property described on Exhibit B hereto upon
Mortgagor satisfying all of the requirements for the extension of the
Maturity Date, including, but not limited to, Mortgagor paying
Mortgagee a principal payment in the amount of Two Hundred Ninety
Thousand and 00/100 Dollars ($290,000.00).
5.4 Choice of Law. This Mortgage Deed is to be construed in all respects
and enforced according to the laws of the State of Florida.
ARTICLE VI.
6.1. Limited Liability. The liability of Mortgagor with respect to the
payment of principal and interest payable under the Note shall be
"non-recourse," and, accordingly, Mortgagee's source of satisfaction of
said indebtedness and Mortgagor's other obligations hereunder and under
any of the other Loan Documents shall be limited to the Premises and
Mortgagee's receipt of the rents, issues and profits from the Premises,
and Mortgagee shall not seek to procure payment out of any other assets
of Mortgagor or any person or entity comprising Mortgagor, or to seek
any judgment for any sums which are or may be payable under the Note,
this Mortgage or any of the other Loan Documents, as well as any claim
or judgment (except as hereafter provided) for any deficiency
remaining after foreclosure of this Mortgage. Notwithstanding the
above, nothing herein contained shall be deemed to be a release or
impairment of the Note or the security therefor intended by this
mortgage and the other Loan Documents, or be deemed to preclude
Mortgagee from exercising its rights to foreclose this Mortgage or to
enforce any of its other rights or remedies under the Loan Documents.
Notwithstanding the foregoing, it is expressly understood and agreed that the
aforesaid limitation on liability shall in no way affect or apply to
Mortgagor's continued personal liability for:
1) fraud or misrepresentation made in or in connection with the Note or
any of the other Loan Documents governing, securing or pertaining to
the payment thereof;
2) failure to pay taxes or assessments prior to delinquency, or to pay
charges for labor, materials or other charges which can create liens on
any portion of the Premises;
3) the misapplication of (i) proceeds of insurance covering any portion of
the Premises; or (ii) proceeds of the sale or condemnation of any
portion of the Premises;. or (iii) rentals received by or on behalf of
Mortgagor subsequent to the date on which Mortgagee makes written
demand therefor pursuant to any of the Loan Documents;
4) causing or permitting waste to occur on, in or about the Premises,
excepting ordinary wear and tear;
5) failure to maintain, repair or restore the Premises in accordance with
any of the Loan Documents governing, securing or pertaining to the
payment of the Note, to the extent not compensated by insurance
proceeds collected by Mortgagee;
6) loss by fire or casualty to the extent not compensated by insurance
proceeds collected by Mortgagee;
7) the return to Mortgagee of all unearned advance rentals and security
deposits paid by tenants of the Premises and not refunded to or
forfeited by such tenants;
8) the return of, or reimbursement for, all personalty owned by Mortgagor
taken from the Premises by or on behalf of Mortgagor, out of the
ordinary course of busi ness, and not replaced by items of equal or
greater value than the original value of the personalty so removed;
9) all court costs and reasonable attorneys' fees actually incurred which
are provided for in the Note or in any other Loan Documents governing,
securing or pertaining to the payment of the Note;
10) (i) the removal of any chemical, material or substance, exposure to
which is prohibited, limited or regulated by any Federal, State,
County, Regional or Local authority which may or could pose a hazard to
the health and safety of the occupants or the Premises, regardless of
the source or origination; (ii) the restoration of the Premises to
comply with all governmental regulations pertaining to hazardous
materials found in, on or under the Premises, regardless of the source
of origination; and (iii) any indemnity or other agreement to hold
Mortgagee harmless from and against any and all losses, liabilities,
damages, injuries, costs and expense of any and every kind arising
under this Mortgage or under any Indemnity Agreement executed in
connection herewith. However, Mortgagor shall not be liable for the
removal of any hazardous materials if such hazardous materials were
placed on the Premises subsequent to Mortgagee's foreclosure of this
Mortgage acquisition of title to the Premises or subsequent to any
transfer by Mortgagor of ownership of the, Premises by means of a
transfer approved by Mortgagee pursuant to this Mortgage and other
Loan Documents (provided that such transferee assumes the obligation to
remove such hazardous materials pursuant to this Mortgage and any
Indemnity Agreement executed in connection herewith). The burden of
proof under this Subparagraph with regard to establishing the date upon
which such hazardous materials were placed or appeared in, on or under
the Premises shall be upon Mortgagor; and
11) any and all costs incurred in order to cause the Improvements to comply
with any Accessibility Laws.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage Deed to be signed and
sealed, the day and year first above written.
Witnesses:
ABR PLYMOUTH PLAZA, LTD., a Florida limited partnership
Robert M. Reed, II, its sole general partner
Address: 695 Broad Avenue S.
Naples, FL 33940
STATE OF FLORIDA COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this day of November,
1992, by Robert M. Reed, II, the sole general partner of ABR Plymouth Plaza,
Ltd., a Florida limited partnership, on behalf of the. limited partnership,
who is personally known to me or who has produced CA , FLA Driver License
as identification and who (did not) take an oath.
NOTARY PUBLIC
Name
My Commission Expires:
1070-049-108040
EXHIBIT NUMBER 10.55
ALLONGE TO NOTE
ALLONGE TO PURCHASE MONEY PROMISSORY NOTE DATED OCTOBER 30, 1992 EXECUTED BY
ABR SPECTRUM, LTD., A FLORIDA LIMITED PARTNERSHIP ("ABR Spectrum"), IN THE
ORIGINAL PRINCIPAL AMOUNT OF $8,048,000 IN FAVOR OF FIRST UNION NATIONAL BANK
Of FLORIDA, A NATIONAL BANKING ASSOCIATION ("THIS NOTE").
Pay to the order of TEACHERS INSURANCE AND ANNUITY ASSOCIATION Of AMERICA. a
New York corporation, its successors and assigns, without representation,
recourse or warranty, express, implied or statutory, except as follows. The
transferor warrants that it is the owner and holder of and has good title to
this Note, that it has the authority to make this transfer; that it has not
executed any prior assignment or pledge of this Note; that the transfer has
been duly authorized; that the warranties made by the undersigned in that
Assignment of Note and Mortgage of even date herewith executed by the
undersigned and ABR Spectrum are true and correct and incorporated in this
instrument.
FIRST UNION NATIONAL BANK OF FLORIDA,
a National Banking Association
WON
THIS ALLONGE SHOULD BE PERMANENTLY AFFIXED TO THE NOTE DESCRIBED ABOVE.
REAL. ESTATE PROMISSORY NOTE
$8,048,000.00 No._________ October 30, 1992
(Date & Execution and Delivery)
LENDER: FIRST UNION NATIONAL BANK OF FLORIDA (hereinafter termed "LENDER"),
100 South Ashley Drive, Suite 850, Tampa, Florida 33602.
BORROWER(S): ABR SPECTRUM, LTD. (Name)
Post Office Box 8957. Naples Collier County. Florida 33940
BORROWER(S) REPRESENT HEREWITH THAT THE LOAN EVIDENCED HEREBY IS BEING
OBTAINED FOR THE FOLLOWING PRIMARY PURPOSE:
XX BUSINESS; __PERSONAL; __FAMILY OR HOUSEHOLD; __AGRICULTURAL
FOR VALUE RECEIVED: to-wit, money loaned to the above named, the undersigned
BORROWER(S) (hereinafter collectively termed "BORROWER"), jointly and
severally (if more than one BORROWER), promise(s) to pay to the order of
LENDER at its office in the above city or wherever else LENDER may specify,
the sum of EIGHT MILLION FORTY EIGHT THOUSAND AND NO/ 100 DOLLARS
($8,048,000.00), with interest on the principal balance from time to time
outstanding until paid,
CONTRACT RATE OF INTEREST Commencing on the date of this Note through October
29, 1995, interest shall accrue at a fixed rate equal to LENDER'S PRIME RATE,
as announced on the date of this Note; Commencing on October 30, 1995, through
October 29, 1997, interest shall accrue at a fixed rate equal to LENDER's
PRIME RATE plus three-quarter of one percent (.75%) as announced on October
30, 1995; Commencing on October 30, 1997 through October 29, 1999, interest
shall accrued at a fixed rate equal to LENDER'S PRIME RATE plus three quarters
of one percent (.75%) as announced on October 30, 1997; and, commencing on
October 30, 1999 through the remaining term of the Note, interest shall
accrue at a fixed rate equal to LENDER'S PRIME RATE plus one and one quarter
percent (1.25%).
TERMS OF PAYMENT Payable in consecutive monthly payments of principal and
interest based upon a thirty (30) year amortization period commencing on
January 1, 1993 in 106 PAYMENT payments initially equal to FORTY EIGHT THOUSAND
TWO HUNDRED FIFTY ONE AND 83/100 DOLLARS ($48,251.83) plus an irregular payment
of all remaining principal and interest due on October 30, 2001;
notwithstanding the foregoing, except in the event of a default, the Contract
Rate of Interest shall never exceed the initial Contract Rate of Interest
payable under this Note plus four percent (4%) nor shall the Contract Rate of
Interest change, on each change date as set forth above, more than two
percent (2%) per change.
The aforementioned monthly payments shall be adjusted as the Contract Rate of
Interest is charged from time to time as set forth above.
The undersigned agrees to pay a late charge equal to 5% of each payment of
principal and/or interest which is not paid within 10 days of the date on
which it issued. At LENDER'S option, the contract rate shall become the
highest rate allowed by the law of the state of LENDER'S office as set forth
herein commencing with and continuing for so long as the loan or any portion
thereof is in Default (as hereinafter defined). Further upon BORROWER'S
Default and where LENDER deems it necessary or proper to employ an attorney
to enforce collection of any unpaid balance or to otherwise protect its
interests hereunder; then BORROWER agrees to pay LENDER'S reasonable
attorneys fees (including appellate costs, if any) and collection costs.
Liability for reasonable attorneys' fees and costs shall exist whether or not
any suit or proceeding is commenced. Interest is computed on the basis of a
360 day year for the actual number of days in the interest period (Actual/360
Computation) unless indicated below.
All payments received during normal banking hours after 2:00 PM. shall be
deemed received at the opening of the next banking day.
If the scheduled payment amount is insufficient to pay accrued interest,
BORROWER shall make an additional payment of the amount of the accrued
interest in excess of the scheduled payment.
Each of the undersigned, whether BORROWER, sureties, or endorsers; and all
others who may become liable for all or any part of the OBLIGATIONS evidenced
hereby do hereby jointly and severally; waive presentment, demand, protest,
notice of protest and/or of dishonor and also notice of acceleration of
maturity on Default or otherwise. Further, they agree that LENDER may, from
time to time, extend, modify, amend or renew this Note for any period
(whether or not longer than the original period of the Note) and grant any
releases, compromises or indulgences with respect to the Note or any
extensions, modifications, amendments or renewals thereof or any security
therefor or to any party liable thereunder or hereunder, all without notice
to or consent of any of the undersigned and without affecting the liability
of the undersigned hereunder.
PAYMENT of this Note, all obligations of the undersigned BORROWER hereunder
U'OBLIGATIONS" to LENDER, its successors and assigns secured interalia, (and
includes the terms and obligations set forth therein), by a valid, subsisting
Mortgage and Security Agreement (the "Mortgage") recorded or to be recorded in
the county in which the real property described in the Mortgage (the
"Property") is located, and by this reference is incorporated herein. If this
Note is issued pursuant to a loan agreement of even date herewith, made by and
between Borrower and Lender (the "Loan Agreement", which term shall be deemed
to include any construction loan agreement or development loan agreement),
then by this reference, the Loan Agreement is specifically incorporated
herein;
If default be made in the payment of any installment under this Note or if the
Borrower violates any of the terms or breaches of any of the conditions of the
Mortgage or the Loan Agreement, the entire principal sum and accrued interest
shall become due and payable without notice, unless otherwise provided in the
Loan Agreement, at the option of the Lender. Failure to exercise this option
shall not constitute a waiver of the right to exercise the same at any other
time. Upon such default, the principal of the Note and any part thereof, and
accrued unpaid interest, if any, shall thereafter bear interest at the highest
legal rate of interest permissible by law (or if the law does not establish a
highest legal rate of interest, then eighteen percent (18%) simple interest
per annum). All parties liable for the payment of this Note agree to pay the
Lender reasonable attorneys' fees for the services and expenses of counsel
employed after maturity or default to collect this Note (including any appeals
relating to such enforcement proceedings), or to protect or enforce the
security hereto, whether or not suit be brought.
The remedies of Lender as provided herein, in the Mortgage and Loan Agreement
shall be cumulative and concurrent, and may be pursued singly, successively or
together at the sole discretion of Lender and may be exercised as often as
occasion therefor shall arise. No act of omission or commission of Lender
including specifically any failure to exercise any right, remedy or recourse,
shall be effective as a waiver thereof unless it is set forth in a written
document executed by Lender and then only to the extent specifically recited
therein. A waiver or release with reference to one event shall not be
construed as continuing, as a bar to, or as a waiver or release of, any
subsequent right, remedy or recourse as to any subsequent event.
Borrower and all sureties, endorsers and guarantors of this Note hereby (a)
waive demand, presentment for payment, notice of nonpayment, protest, notice
of protest all other notice, filing of suit and diligence in collecting this
Note, in enforcing any of security rights or in proceeding against the
Property; (b) agree to any substitution, exchange, addition or release of any
of the Property or the addition or release of any party or person primarily or
secondarily liable hereon; (c) consent to any extension, rearrangement,
renewal or postponement of time of payment of this Note and to any of
indulgence with respect hereto without notice; consent or consideration to any
of foregoing (except the express written release by Lender of any such
person), they shat and remain jointly and severally, directly and primarily,
liable for all sums due under this Note, the Mortgage and the Loan Agreement.
As used herein, the words, "Borrower" and "Lender" shall be deemed to include
Borrower and Lender as defined herein and their respective heirs, personal
representatives, successors and assigns.
This Note is executed and delivered at the Place of Execution and shall be
construed and enforced in accordance with the laws of the State of Florida.
ADDITIONAL PROVISIONS
BORROWER hereby further warrants, covenants, and agrees, as follows:
Anything contained herein to the contrary notwithstanding, if for any reason
the effective rate of interest on this Note should exceed the maximum lawful
rate, the effective rate shall be deemed reduce dot and shall be such maximum
lawful rate, and any sums of interest which have been collected in excess of
such maximum lawful rate shall be applied as a credit against the unpaid
balance due hereunder.
If the interest provision contained herein refers to "LENDER'S PRIME RATE",
the LENDER'S PRIME RATE shall be that rate announced by LENDER from time to
time as its prime rate and is one of several interest rate bases used by the
LENDER. The LENDER lends at rates both above and below LENDER'S PRIME RATE,
and BORROWER acknowledges that LENDER'S PRIME RATE is not represented to be
the lowest or most favorable rate of interest offered by LENDER.
LENDER'S Actual/360 or 365/360 computation determines the annual effective
interest yield by taking the stated (nominal) interest rate for a year's
period and then dividing said rate by 360 to determine the daily periodic rate
to be applied for each day in the interest period. Application of such
computation produces an annualized effective interest rate exceeding that of
the nominal rate.
At LENDER'S option, any repayments of this Note, other than by U.S. currency,
v not be credited to the outstanding loan balance until LENDER receives
collected fund
In the event any provision(s) of this instrument shall be left blank or
incomplete BORROWER hereby authorizes and empowers LENDER to supply and
complete necessary information as a ministerial task consistent with the
understanding between parties.
BORROWER warrants that BORROWER does not have either a "record" or reputation
for violating Laws of the United States or of any State relating to liquor (as
refer to in 18 U.S.CA 3617, et seq.) or narcotics and/ or any commercial
crimes.
As used herein, the term "COLLATERAL" shall be deemed to be all real and
personal property described in the Mortgage or Loan Documents given, conveyed,
pledged or assigned to secure the indebtedness evidenced by this Note and the
Loan Documents.
The COLLATERAL SHALL, AT ALL TIMES, BE AT BORROWER'S RISK. The loss, injury
to or destruction of the COLLATERAL shall not release BORROWER from payment or
other performance hereof. BORROWER agrees to obtain and keep in force
Physical Damage and/or Property Damage Insurance on said COLLATERAL and any
other insurance required by LENDER. Such insurance is to be in form and
amounts satisfactory to LENDER, with the same payable to LENDER. All such
policies shall provide for ten (10) days written minimum cancellation notice
to LENDER. BORROWER shall furnish to LENDER the original policies or
certificate or other evidence satisfactory to LENDER of compliance wi the
foregoing provisions. LENDER is authorized, but not obligated, to purchase
any or all of said insurance or "single interest insurance" protecting only
its security interest, all at BORROWER'S expense. In such event, BORROWER
agrees to reimburse LENDER for the cost of such insurance to the extent that
the sam is not included in the principal amount of this Note.
BORROWER hereby assigns to LENDER the proceeds of all such insurance to the
extent of the unpaid balance hereunder, and directs any insurer to make
payments directly to LENDER. BORROWER further hereby grants to LENDER his
Power of (Attorney, which shall be irrevocable for so long as any amount is
unpaid hereunder Said Power of Attorney gives LENDER the sole right to file
Proof of Loss and/or any other forms required to collect from any insurer any
amount due from any loss, damage or destruction of the COLLATERAL; to agreed
to and bind BORROWER as to the amount of said recovery; to designate Payee(s)
of such recovery; to grant releases to payor-insurers for their liability; to
grant subrogation rights to any such payor-insuerer and to endorse any
settlement check or draft. BORROWER further agrees not to exercise any of the
foregoing Powers granted to LENDER, without the latter's written consent. In
the event of any default hereunder LENDER is authorized in tis sole discretion
to cancel any insurance and credit any premium refund against the unpaid
balance due on BORROWER'S OBLIGATIONS.
At its option, LENDER may discharge taxes, liens, security interests or other
encumbrances at any time levied or placed on said COLLATERAL, may pay for
insurance and for the maintenance and preservation of same. BORROWER agrees to
reimburse LENDER, on demand, for any such payment made, or any such expense
incurred LENDER pursuant to the foregoing authorization. Until Default, as
hereinafter defined BORROWER shall have the right to retain possession of the
COLLATERAL, un otherwise agreed by the parties hereto, and to use in any
lawful manner not inconsistent with the AGREEMENT and with any policy of
insurance thereon. Borrower shall be Ii for all documentary and intangible
taxes assessed at closing or from time to time du the life of the transaction.
LENDER may, to the extnetn permitted by law, with or iwithout notice, before
or after maturity of this Note, transfer or egister int eh name of its
nominee(s) all or any part of the COLLATERAL and also exercise any or all
rights of collection, conversion or exchange and other similar rights,
privileges an doptions pertaining to the COLLATERAL; but shall have no duty to
exercise any such rights, privileges or options or to sell or otherwise
realize upon any of the COLLATERAL as herein authorized or to preserve the
same and shall not be responsible for any failure to do so or delay in so
doing. As to any COLLATERAL consisting of instruments or chattel paper, it is
agreed that LENDER shall not be required to take any steps whatever to
preserve any rights against prior parties.
Upon any transfer of this Note, the LENDER may deliver the property held as
security, or any part thereof, to the transferee, as well as any subsequent
holder hereof who shall thereupon become vested with all the powers and rights
herein given to the LENDER in respect to the property so transferred and
delivered; and the LENDER shall thereafter be forever relieved and fully
discharged form any liability or responsibility with respect to such property
so transferred but with respect to any property not so transferred, the LENDER
shall retain all rights and powers hereby given.
With prior written consent of LENDER, other COLLATERAL may be substituted for
the original COLLATERAL herein, in which event all rights, duties,
obligations, remedies and security interests provided for, created or granted
shall apply fully to such substitute COLLATERAL.
WAIVER OF JURY TRIAL. BY THE EXECUTION HEREOF, BORROWER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY AGREES, THAT:
12. NEITHER THE BORROWER NOR ANY ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL
REPRESENTATION OF ANY OF THE SAME SHALL SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE
ARISING FROM OR BASED UPON THIS PROMISSORY NOTE, ANY OTHER LOAN
AGREEMENT OR ANY LOAN DOCUMENT EVIDENCING, SECURITY OR RELATING TO THE
OBLIGATIONS OR THE DEALINGS OR RELATIONSHIP BETWEEN OR AMONG THE PARTIES
THERETO;
(M) NEITHER THE BORROWER NOR LENDER WILL SEEK TO CONSOLIDA' ANY SUCH
ACTION, IN WHICH A JURY TRIAL HAS BEEN WAVED, WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL HAS NOT BEEN NOR CANNOT BE WAVED;
(N) THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE
PARTIES HERETO, AND THESE PROVISIONS SHALL BE SUBJECT TO I EXCEPTIONS;
(O) NEITHER THE BORROWER NOR LENDER HAS IN ANY WAY AGREED WITH OR
REPRESENTED TO ANY OTHER PARTY THE PROVISIONS OF THIS PARAGRAPH WILL NOT
BE FULLY ENFORCED IN ALL INSTANCES; AND
(P) THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THIS
TRANSACTION.
EVENTS OF DEFAULT
(17) Default in the payment or performance of any of the OBLIGATIONS provided
hereunder or in connection herewith or any other OBLIGATIONS of BORROWER
or any affiliate (as defined in 11 U.S.C. 101 (2), herein after
"Affiliate") of BORROWER or any endorser or surety for BORROWER to
LENDER or any Affiliate of LENDER, howsoever created, primary or
secondary, whether direct or indirect, absolute or contingent, now or
hereafter existing, due or to be become due, or of any other covenant,
warranty, or undertaking expressed herein, therein, or in any other
document establishing said endorsement or surety; or any other document
executed by BORROWER in conjunction herewith;
(18) Any material warranty, representation or statement made or furnished to
LENDER by or on behalf of BORROWER, or any endorser, or surety for
BORROWER in connection with the Note or to induce LENDER to make a loan
to BORROWER which was false in any material respect when made o
furnished or has become materially false, if such warranty of BORROWER
or endorser or surety for BORROWER was ongoing in nature; or
19) Dissolution, termination of existence, insolvency, business fail
appointment of a receiver, custodian, or trustee for any part of the
property of, assignment for the benefit of creditors by, or the
commencement of any proceeding under bankruptcy or insolvency laws by or
against BORROWER or any endorsers, or surety BORROWER; or
(t) Failure of a corporate BORROWER or endorser or surety for BORROWER to
maintain its corporate existence in good standing; or
(u) Upon the entry of any monetary judgment or the assessment and/or filing
of any tax lien against BORROWER or any endorser, surety, or upon the
issuance of any of garnishment, judicial seizure of, or attachment
against any property of, debts due or rights of BORROWER or any
endorser, surety to specifically include commencement of any action or
proceeding to seize monies of BORROWER or any endorser, surety on
deposit in any bank account with LENDER which, with respect to any of
the foregoing, is not satisfied, transferred to an acceptable bond or
dismissed, as appropriate within thirty (30) days from the occurrence
thereof; or
(v) The BORROWER or any endorsers or surety for said BORROWER shall be a
debtor, either voluntarily or involuntarily [and with respect to any
involuntary act of bankruptcy, BORROWER or any endorser or surety fails
to obtain the dismissal thereof within ninety (90) days from the date
thereof], under (and as the term debtor is defined in) the Bankruptcy
Code or should the BORROWER be generally not paying BORROWER'S debts as
such debts become due; or
(xxiii) Failure of said BORROWER, endorsers or sureties to furnish
financial statements or other financial information reasonably requested
by LENDER, or
(x) Uninsured loss, theft, material and substantial damage, destruction,
sale or encumbrance to or of any COLLATERAL or the assertion of making
of any levy, seizure, mechanics or materialman's lien or attachment
thereof or thereon; or
Notwithstanding anything herein to the contrary, BORROWER shall, unless
otherwise specifically set forth herein or in the Loan Documents, have a ten
(10) day right to cure after written notice with respect to Events of Default
involving the payment of any sum of money due hereunder or under the Loan
Documents and a thirty (30) day right to cure after written notice with
respect to any other Event of Default.
REMEDIES ON DEFAULT (including Powers of Sale)
Upon the occurrence of any of the foregoing events, circumstances or
conditions of Default, and upon the expiration fo any applicable curative
period, all of the OBLIGATIONS evidenced herein and secured hereby shall at
the option of the LENDER, immediately be due and payable without notice.
Further, LENDER shall then have all the rights and remedies of a SECURED PARTY
under the Uniform Commercial Code, as adopted by the State of LENDER'S offie
as set forth herein.
Without limitation thereto, LENDER shall have the following specific rights <
remedies subject to the aforementioned curative periods;
25. To take immediate possession of the COLLATERAL without notice or res to
legal process; and for such purpose, to enter upon any premises on which
the COLLATERAL or any part thereof may be situated and remove the same
therefrom; or at option, to render the COLLATERAL unusable. Further,
also at its option, to dispose of s COLLATERAL on BORROWER'S premises.
26. To require BORROWER to assemble the COLLATERAL and make it available to
LENDER at a place to then be designated by said LENDER, which is
reasonably convenient to both parties.
27. To dispose of COLLATERAL as allowed by the Uniform Commercial Code, as
adopted by the State of LENDER'S office as set forth herein, in any
County or place selected by LENDER, at either Private or Public Sale (at
which Public Sale LENDER may be the purchaser) with or without having
the COLLATERAL physically present at said site.
28. To make or have made nay repairs deemed necessary or desirable at time
of repossession, possession or sale, the cost of which is to be charged
against BORROWER.
29. To apply the proceeds realized for disposition of the COLLATERAL to
satisfy the following terms, in the order here listed:
(a) The cost of reimbursing any person whose interest in the premises is
physically damaged by the entry and removal of the COLLATERAL, upon
BORROWER'S failure to do so; next to
(b) The expenses of taking, removing, holding for sale, repairing or
otherwise preparing for sale and selling of said COLLATERAL specifically
including the LENDER'S reasonable Attorney's fees (including appellate
costs, if any) and both legal and collection expenses; next to
(c) The expense of liquidating any liens, security interests, attachments or
encumbrances superior to the security interests herein created; and
finally to;
(d) The unpaid principal and all accumulated interest hereunder and to any
other debt owed to LENDER by any signer hereof.
Any surplus, after the satisfaction of the foregoing items (a) through (d)
shall be paid to BORROWER or to any other PARTY lawfully entitled thereto and
known to t LENDER. Further, if proceeds realized from disposition of the
COLLATERAL shall fail to satisfy any of the foregoing items (a) through (d),
BORROWER shall forthwith deficiency balance to LENDER.
No waivers, amendments or modifications shall be valid unless in writing.
Further, this Note shall be governed by and construed under the laws of the
state of the LENDER office as set forth herein. All terms and expressions
contained herein which are defined in Articles 1, 3 or 9 of the Uniform
Commercial Code of the state of Florida shall have same meaning herein as in
said Articles of said Code. No waiver by LENDER of default(s) :,hall operate
as a waiver of any other default or the same default on a fut occasion.. All
rights of LENDER hereunder shall ______ the benefit of its successors and
assigns; and all obligations of BORROWER shall bind his heirs, executors,
administrators, successors and/or assigns.
Use of the masculine pronoun herein shall include the feminine and neuter and
also the plural. If any provision of this instrument shall be prohibited or
invalid under applicable law, such provision shall be ineffective but only the
extent of such prohibition of invalidity, without invalidating the remainder
of such provision or the remaining provisions of the Agreement. "Agreement"
refers to the entire PROMISSORY NOTE herein. In the case of conflict between
the terms of this Agreement and the Mortgage, Loan Agreement and/or Commitment
Letter issued in connection herewith, the priority of controlling terms shall
be first this Agreement, then the Mortgage, the Loan Agreement, then the
Commitment Letter.
NON-RECOURSE
Notwithstanding anything the contrary herein, nether BORROWER, nor any General
Partner of BORROWER, shall have personal liability for the debt evidenced by
this Real Estate Promissory Note, and any recourse shall be limited to the
Property secured by the Mortgage of even date. If BORROWER shall fail to
perform any covenant or condition of this Real Estate Promissory Note and as a
consequence of such default, LENDER shall recover a money judgment against
BORROWER, such judgment shall be satisfied only out of the proceeds of the
sale of the collateral securing the Loan.
IN WITNESS WHEREOF, the Borrower, effective as of the day and year first
written above, has caused this Note to be executed under seal by (i) if a
corporation, adoption of the facsimile seal printed hereon for such special
occasion and purpose (or if an impression seal appears hereon by affixing such
impression seal) by its duly authorized officer(s) or (ii) if by individuals,
hereunto setting their hands and seals.
ABR SPECTRUM, LTD., a Florida limits ship
By:
General Partner
(Seal)
Taxpayer Identification Number(s) 65-0364763
EXHIBIT NUMBER 10.56
evidenced by the Note and Mortgage are accurate and correct in all material
respects and complete insofar as may be necessary to give Mortgagee a true
and accurate knowledge of the subject matter.
1.03 Ground Leases, Leases, Subleases and Easements. Mortgagor, at
Mortgagor's sole cost and expense, shall maintain and cause to be
performed all of the covenants, agreements; terms, conditions and
provisions on its part to be kept, observed and performed under any
ground lease, lease, sublease or easements which may constitute a
portion of or an interest in the Premises, shall require its tenants or
subtenants to keep, observe and perform all the covenants, agreements,
terms, conditions and provisions on their part to be kept, observed or
performed under any and all ground leases, leases, subleases or
easements; and shall not suffer or permit any breach or default to occur
with respect to the foregoing; and in default thereof the Mortgagee
shall have the fight to perform or to require performance of any such
covenants, agreements, terms, conditions or provisions of any such
ground lease, lease, sublease or easements and to add any expense
incurred in connection therewith to the debt secured hereby, which such
expense shall bear interest from the date of payment to the date of
recovery by the Mortgagee at the Default Rate as hereinafter defined.
Any such payment by the Mortgagee with interest thereon shall be
immediately due and payable. The Mortgagor shall not, without the
consent of the Mortgagee, consent to the modification, amendment,
cancellation, termination or surrender of any such ground lease, lease,
sublease, or easement.
No release or forbearance of any of Mortgagor's obligation under any such
ground lease, lease, or sublease, shall release Mortgagor from any of its
obligations under this Mortgage.
1.04 Required Insurance. Mortgagor will, at Mortgagor's sole cost and
expense, maintain or cause to be maintained with respect to the
Mortgaged Property, and each part thereof, the following insurance:
5. insurance against loss or damage to the improvement by fire and any of
the risks covered by insurance of the type now known as "fire and
extended coverage," in an amount not less than the original amount of
the Note or the full replacement cost of the Improvements; and
6. Such other insurance, and in such amounts, as may from time to time be
required by Mortgagee against the same or other hazards.
All policies of insurance required by the terms of this Mortgage shall contain
an endorsement or agreement by the insurer that any loss shall be payable 4n
accordance with the terms of such policy notwithstanding any act or
negligence of Mortgagor which might otherwise result in forfeiture of said
insurance and the further agreement of the insurer waiving all fights of set
off, counterclaim or deductions against Mortgagor.
Mortgagor may effect for its own account any insurance not required under this
Section 1.04, but any such insurance effected by Mortgagor on the Premises,
whether or not so required, shall be for the mutual benefit of Mortgagor and
Mortgagee and shall be subject to the other provisions of this Mortgage.
1.05 Deliver of Policies, Payment of Premiums. All policies of insurance
shall be issued by companies and in amounts in each company
satisfactory to Mortgagee. All policies of insurance shall have
attached thereto a lender's loss payment endorsement for the benefit of
Mortgagee in form satisfactory to Mortgagee. Mortgagor shall furnish
Mortgagee with an original policy of all policies of required insurance.
If Mortgagee consents to Mortgagor providing any of the required
insurance through blanket policies carried by Mortgagor and covering
more than one location, then Mortgagor shall furnish Mortgagee with a
certificate of insurance for etch such policy setting forth the
coverage, the limits of liability, the name of the carrier, the policy
number, and the expiration date. At least thirty (30) days prior to the
expiration of each such policy, Mortgagor shall furnish Mortgagee with
evidence satisfactory to Mortgagee of the payment of premium and the
reissuance of a policy continuing insurance in force as required by this
Mortgage. All such policies shall contain a provision that such
policies will not be canceled or materially amended, which term shall
include any reduction in the scope or limits of coverage, without at
least thirty (30) days prior written notice to Mortgagee. In the event
Mortgagor fails to provide, maintain, keep in force or deliver and
furnish to Mortgagee the policies of insurance required by this
Section, Mortgagee may procure such insurance or single-interest
insurance for such risks covering Mortgagee's interest, and Mortgagor
will pay all premiums thereon promptly upon demand by Mortgagee, and
until such payment is made by Mortgagor the amount of all such premiums
together with interest thereon at the rate of interest after maturity
or default provided in the Note or the maximum rate permitted by Florida
law, whichever is less (the "Default Rate").
1.06 Insurance Proceeds. After the happening of any casualty to the Mortgaged
Property or any part thereof, Mortgagor shall give prompt written
notice thereof to Mortgagee.
1. In the event of any damage to or destruction of the Mortgaged Property,
Mortgagee shall have the option in its sole discretion of applying or
paying all or part of the insurance proceeds (i) to any indebtedness
secured hereby and in such order as Mortgagee may determine, or (ii) to
the restoration of the Improvements, or (iii) to Mortgagor.
2. In the event of such loss or damage, all proceeds of insurance shall be
payable to Mortgagee, and Mortgagor hereby authorizes and directs any
affected insurance company to make payment of such proceeds directly to
Mortgagee. Mortgagee is hereby authorized and empowered by Mortgagor to
settle, adjust or compromise any claims for loss, damage or destruction
under any policy or policies of insurance.
3. Except to the extent that insurance proceeds are received by Mortgagee
and applied to the indebtedness secured hereby, nothing herein contained
shall be deemed to excuse Mortgagor from repairing or maintaining the
Mortgaged Property as provided in this Mortgage or restoring all damage
or destruction to the Mortgaged Property, regardless of whether or not
there are insurance proceeds available or whether any such proceeds are
sufficient in amount, and the application or release by Mortgagee of
any insurance proceeds shall not cure or waive any default or notice of
default under this Mortgage or invalidate any act done pursuant to such
notice.
1.07 Assignment of Policies Upon Foreclosure. In the event of foreclosure of
this Mortgage or other transfer of tile or assignment of the Mortgaged
Property in extinguishment, In whole or in part, of the debt secured
hereby, all right, title and interest of the Mortgagor in and to all
policies of insurance required by this Section shall inure to the
benefit of and pass the successor in interest to Mortgagor or the
purchaser or grantee of the Mortgaged Property. Mortgagor hereby
appoints Mortgagee its attorney-in-fact to endorse any checks, drafts
or other instruments representing any proceeds of such insurance,
whether payable by reason of loss thereunder or otherwise.
1.08 Taxes, Utilities and Impositions. Mortgagor will pay, or cause to be
paid and discharged, on or before the last day on which they may be
paid without penalty or interest, all such duties, taxes, sewer rents,
charges for water, or for seeing or repairing of meters, and all other
utilities on the Mortgaged Property or any part thereof, and any
assessments and payments, usual or unusual, extraordinary or ordinary,
which shall be imposed upon or become due and payable or become a lien
upon the Premises or any part thereof and the sidewalks or streets in
front thereof and any vaults therein by virtue of any present or future
law of the United States or of the State, County, or City wherein the
Premises are located (all of the foregoing being herein collectively
called "impositions"). In default of any such payment of any
imposition, Mortgagee may pay the same and the amount so paid by
Mortgagee shall, at the Mortgagee's option, become immediately due and
payable with interest at the Default Rate and shall be deemed part of
the indebtedness secured by this Mortgage.
If at any time there shall be assessed or imposed (i) a tax or assessment on
the Premises in lieu of or in addition to the Impositions payable by
Mortgagor pursuant to this Section or (ii) a license fee, tax or assessment
imposed on Mortgagee and measured by or based in whole or in part upon the
amount of the outstanding obligations secured hereby, then all such taxes,
assessments or fees shall be deemed to be included within the term
"impositions" as defined in this Section, and Mortgagor shall pay and
discharge the same as herein provided with respect to the payment of
Impositions or, at the option of Mortgagee, all obligations secured hereby,
together with all accrued interest thereon, shall immediately become due and
payable. Anything to the contrary herein notwithstanding, Mortgagor shall
have no obligation to pay any franchise; estate, inheritance, income, excess
profits or similar tax levied on Mortgagee or on the obligations secured
hereby.
Mortgagor will pay all mortgage recording taxes and fees payable with respect
to this Mortgage or other mortgage or transfer taxes due on account of this
Mortgage or the Note secured hereby.
Mortgagor will exhibit to Mortgagee the original receipts or other reasonably
satisfactory proof of the payment of all impositions which may affect the
Mortgaged Property or any part thereof or the lien of the Mortgage promptly
following the last date on which each imposition is payable hereunder.
Notwithstanding the foregoing, Mortgagor shall have the right, after prior
written notice to Mortgagee, to contest at its own expense the amount and
validity of any imposition affecting the Mortgaged Property by appropriate
proceedings conducted in good faith and with due diligence and to postpone or
defer payment thereof, if and so long as:
1. Such proceedings shall operate to suspend the collection of such
imposition from Mortgagor or the Mortgaged Property; or
2. Neither the Mortgaged Property nor any part thereof would be in
immediate danger of being forfeited or lost by reason of such
proceedings, postponement or deferment; and
3. In the case of any imposition affecting the Mortgaged Property which
might be or become a lien, encumbrance or charge upon or result in any
forfeiture or loss of the Mortgaged Property or any part thereof, or
which might result in loss or damage to Mortgagor or Mortgagee,
Mortgagor, prior to the date such Imposition would become delinquent,
shall have furnished Mortgagee with security satisfactory to Mortgagee,
and, in the event that such security is furnished, Mortgagee shall not
have the right during the period of the contest to pay, remove or
discharge the Imposition.
1.09 Maintenance, Repairs, Alterations. Mortgagor shall keep the Mortgaged
Property, or cause the same to be kept, in good condition and repair and
fully protected from the elements to the satisfaction of Mortgagee;
Mortgagor shall not commit nor permit to be committed waste thereon and
shall not do nor permit to be done any act by which the Mortgaged
Property shall become less valuable; Mortgagor will not remove, demolish
or structurally alter any of the Improvements (except such alterations
as may be required by laws, ordinances or regulations) without the
prior written permission of the Mortgagee; Mortgagor shall complete
promptly and in good and workmanlike manner any building or other
improvement which may be constructed on the Premises and promptly
restore in like manner any Improvements which may be damaged or
destroyed thereon and will pay when due all claims for labor performed
and materials furnished therefor, Mortgagor shall use and operate, and
shall require its lessees or licensees to use or operate, the Mortgaged
Property in compliance with all applicable laws, t ordinances,
regulations, covenants, conditions and restrictions, and with all
applicable requirements of any ground lease, lease or sublease now or
hereafter affecting the Premises or any part thereof. Unless required
by law or unless Mortgagee has otherwise agreed in writing, Mortgagor
shall not allow changes in the stated use of Mortgaged Property from
that which was disclosed to Mortgagee at the time of execution hereof.
Mortgagor shall not initiate or acquiesce to a zoning change of the
Mortgaged Property without the prior notice to and consent of
Mortgagee. Mortgagee and its representatives shall have access to the
Premises at all reasonable times to determine whether Mortgagor is
complying with its obligations under this Mortgage, including, but not
limited to, those set out in this Section.
1.10 Eminent Domain. Should the Mortgaged Property, or any part thereof or
interest therein, be taken or damaged by reason of any public use or
improvement or condemnation proceeding, or in any other manner
("Condemnation"), or should Mortgagor receive any notice or other
information regarding such Condemnation, Mortgagor shall give prompt
written notice thereof to Mortgagee.
(a) Mortgagee shall be entitled to all compensation, awards and other
payments or relief granted in connection with such Condemnation, and
shall be entitled, at its option, to commence, appear in and prosecute
in its own name any action or proceedings relating thereto. Mortgagee
shall also be entitled to make any compromise or settlement in
connection with such taking or damage. All such compensation,. awards,
damages, rights of action and proceeds awarded to Mortgagor (the
"Proceeds") are hereby assigned to Mortgagee and Mortgagor agrees to
execute such further assignments of the Proceeds as Mortgagee may
require.
(b) In the event any portion of the Mortgaged Property is so taken or
damaged, Mortgagee shall have the option in its sole and absolute
discretion, to apply all such Proceeds,'after deducting therefrom all
costs and expenses (regardless of the particular nature thereof and
whether incurred with or without suit), including attorneys' fees,
incurred by it in connection with such Proceeds, upon any indebtedness
secured hereby, or to apply all such Proceeds, after such deductions,
to the restoration of the Mortgaged Property upon such conditions as
Mortgagee may determine. Such application or release shall not cure or
waive any default or notice of default hereunder or invalidate any act
done pursuant to such notice.
(c) Any amounts received by Mortgagee hereunder (after payment of any costs
in connection with obtaining same), shall, if retained by Mortgagee, be
applied in payment of any accrued interest and then in reduction of the
then outstanding principal sum of the Note, notwithstanding that the
same may not then be due and payable. Any amount so applied to
principal shall be applied to the payment of installments of principal
on the Note in inverse order of their due dates.
1.11 Actions by Mortgagee to preserve the Security of this Mortgage. If the
Mortgagor fails to make any payment or to do any act as and in the
manner provided for in this Mortgage or the Note, the Mortgagee, in its
own discretion, without obligation so to do and subject to the notice
and curative period required-hereunder and without releasing Mortgagor
from any obligation, may make or do the same in such manner and to such
extent as the Mortgagee may deem necessary to protect the security
hereof. Mortgagor will pay upon demand all expenses incurred or paid by
Mortgagee (including, but not limited to, attorneys' fees and court
costs including those of appellate and bankruptcy proceedings) on
account of the exercise of any of the aforesaid rights or privileges or
on account of any litigation which may arise in connection with this
Mortgage or the Note or on account of any attempt, without litigation,
to enforce the terms of this Mortgage or said Note. In case the
Mortgaged Property or any part thereof shall be advertised for
foreclosure sale and not sold, Mortgagor shall pay all costs in
connection therewith.
In the event that the Mortgagee is called upon to pay any sums )i money to
protect this Mortgage and the Note as aforesaid, all monies advanced or due
hereunder shall become immediately due and payable, together with interest at
the Default Rate, computed from the date of such advance to the date of the
actual receipt of payment thereof by the Mortgagee.
1.12 Cost of Collection. In the event this Mortgage is placed in the hands of
an attorney for the collection of any sum payable hereunder, the
Mortgagor agrees to pay all costs of collection, including reasonable
attorney's fees including those in all appellate and bankruptcy
proceedings, incurred by the Mortgagee, either with or without the
institution of any action or proceeding, and in addition to all costs,
disbursements and allowances provided by law. All such costs so
incurred shall be deemed to be secured by this Mortgage.
1.13 Survival of Warranties. All representations, warranties and covenants of
Mortgagor contained herein or incorporated by reference shall survive
funding of the loan evidenced by the Note and shall remain continuing
obligations, warranties and representations of Mortgagor during any
time when any portion of the obligations secured by this Mortgage
remain outstanding.
1.14 Additional Security. In the event Mortgagee at any time holds additional
security for any of the obligations secured hereby, it may enforce the
sale thereof or otherwise realize upon the same, as its option, either
before or concurrently herewith or after a sale is made hereunder.
1.15 Inspections. Mortgagee, or its agents, representatives or workmen, are
authorized to enter at any reasonable time upon or on any part of the
Premises for the purpose of inspection the same, and for the purpose of
performing any of the acts it is authorized to perform under the terms
of this Mortgage.
1.16 Liens. Mortgagor shall pay and promptly discharge, at Mortgagor's cost
and expense, all liens, encumbrances and charges upon the Mortgaged
Property or any part thereof or interest therein. Mortgagor shall have
the right to contest in good faith the validity of any such lien,
encumbrance or charge, provided Mortgagor shall first deposit with
Mortgagee a bond or other security satisfactory to Mortgagee in such
amounts as Mortgagee shall reasonably require, and provided further
that Mortgagor shall thereafter diligently proceed to cause such lien,
encumbrance or charge to be removed and discharged. If Mortgagor shall
fail to discharge any such lien, encumbrance or charge, then, in
addition to any other right or remedy of Mortgagee, subject to the
notice requirement and curative periods required hereunder, may, but
shall not be obligated to, discharge the same, either by paying the
amount claimed to be due, or by procuring the discharge of such lien by
depositing in court a bond for the amount claimed or otherwise giving
security for such claim, or in such manner as is or may be prescribed
by law. Any amount so paid by the Mortgagee shall, at Mortgagee's
option, become immediately due and payable with interest at the Default
Rate, and shall be deemed part of the indebtedness secured by this
Mortgage.
1.17 Future Advances. This Mortgage is given to secure not only existing
indebtedness, but also future advances, whether such advances are
obligatory or are to be made at the option of Mortgagee, or otherwise,
as are made within twenty (20) years from the date hereof, to the same
extent as if such future advances are made oa the date of the execution
of this Mortgage. The total amount of indebtedness that may be so
secured may decrease to a zero amount from time to time, or may
increase from time to time, but the total unpaid balance so secured at
one time shall not exceed twice the face amount of the Note, plus
interest thereon, and any disbursements made for the payment of taxes,
levies or insurance on the Mortgaged Property, with interest on such
disbursements at the Default Rate as hereinafter defined.
1.18 No Limitation of Future Advance Rights. Mortgagor covenants and agrees
with Mortgagee that:
(a) Mortgagor waives and agrees not to assert any right to limit future
advances under this Mortgage, and any such attempted limitation shall be
null, void and of no force and effect. Any correspondence by Mortgagor
regarding the future advances must be sent to Mortgagee at the address
set forth above and to Mortgagee's counsel:
(b) An event of default under the Mortgage shall automatically exist (i) if
Mortgagor executes any instrument which purports to have or would have
the effect of impairing the priority of or limiting any future advance
which might ever be made under the Mortgage or (ii) if Mortgagor takes,
suffers, or permits any action or occurrence which would adversely
affect the priority of any future advance which might ever be made under
the Mortgage.
1.19 Appraisals. Mortgagor covenants and agrees that Mortgagee may obtain an
appraisal of the Mortgaged Property when required by the regulations of
the Federal Reserve Board or the Office of the Comptroller of -the
Currency or at such other times as the Mortgagee may reasonably
require. Such appraisals shall be performed by an independent third
party appraiser selected by the Mortgagee. The cost of such appraisal
shall be borne by the Mortgagor. If requested by Mortgagee, the
Mortgagor shall execute an engagement letter addressed to the appraiser
selected by the Mortgagee. Mortgagor's failure or refusal to sign such
an engagement letter however shall not impair Mortgagee's right to
obtain such an appraisal. Mortgagee agrees to pay the cost of such
appraisal within ten (10) days after receiving an invoice for such
appraisal.
ARTICLE II
ASSIGNMENT OF LEASES, SUBLEASES,
FRANCHISES, RENTS, ISSUES AND PROFITS
2.01 Assignment of Rents. Mortgagor hereby collaterally assigns and transfers
to Mortgagee all the leases, subleases, franchises, rents, issues and
profits of the Mortgaged property, and hereby gives to and confers upon
Mortgagee the right, power and authority to collect such rents, issues
and profits as herein set forth. Mortgagor irrevocably appoints
Mortgagee its true and lawful attorney-in-fact, at the option of
Mortgagee, immediately and without further legal action being
necessary, to demand, receive and enforce payment, to give receipts,
releases and satisfactions, and to sue, in the name of Mortgagor or
Mortgagee, for all such rents, issues and profits and apply the same to
the indebtedness secured hereby; provided, however, that Mortgagor
shall have the right to collect such rents, issues and profits (but not
more than one month in advance) prior to or at any time there is not an
event of default under this Mortgage.
2.02 Collection Upon Default. Upon any event of default under this Mortgage,
Mortgagee may, at any time subject to the notice requirements and
curative periods provided hereunder, either in person, by agent or by a
receiver appointed by, a court, and without regard to the adequacy of
any security for the indebtedness hereby secured, enter upon and take
possession of the Mortgaged Property, or any part thereof, in its own
name, sue for or otherwise collect such rents, issues and profits,
including those past due and unpaid, and apply the same, less costs and
expenses of operation and collection, including attorneys' fees, upon
any indebtedness secured hereby, and in such order as Mortgagee may
determine. The collection of such rents, issues and profits, or the
entering upon and taking possession of the Mortgaged Property, or the
application thereof as aforesaid, shall not cure or waive any default
or notice of default hereunder or invalidate any act done in response
to such default or pursuant to such notice of default.
2.03 Restriction on Further Assignments, etc. Except as hereinafter
specifically provided, Mortgagor shall not, without the prior written
consent of the Mortgagee, assign the rents, issues or profits, or any
part therefrom the Mortgaged Property or any part thereof. An action of
Mortgagor in violation of the terms of this Section shall be void as
against Mortgagee in addition to being a default under this Mortgage.
Mortgagor shall have the right in Mortgagor's reasonable discretion to enter
into new leases, modify existing or new leases or terminate existing or new
leases without the prior written consent of Mortgagee provided that all such
acts shall be undertaken in a commercially reasonable manner in light of
prevailing market standards in the Orange County area. Except as set forth
above, the Mortgagor shall not, without the consent of the Mortgagee, consent
to the cancellation or surrender or, accept prepayment or rents, issues or
profits, other than rent paid at the signing of a lease or sublease, under any
lease or sublease now or hereafter covering the Mortgaged Property or any
part thereof, nor modify any such lease or sublease in any manner not
commercially reasonable; and any such purported assignment, cancellation,
surrender, prepayment or modification made without the written consent of the
Mortgagee shall be void as against the Mortgagee. The Mortgagor shall, upon
demand of the Mortgagee, enter into an agreement with the Mortgagee with
respect to the provisions contained in the preceding provision regarding any
lease or sublease covering said Mortgaged Property or any part thereof, and
the Mortgagor hereby appoints the Mortgagee attorney-in-fact of the Mortgagor
to execute and deliver any such agreement of behalf of the Mortgagor and
deliver written notice thereof to the tenant to whose lease such agreement
relates.
The Mortgagor agrees to furnish to the Mortgagee within thirty days a copy of
any modification of any lease presently in effect and copies of all future
leases affecting the Mortgaged Property covered by this Mortgage, and.
failure to furnish to the Mortgagee a copy of any modification. of a lease or
a copy of any future lease affecting said Mortgaged Property, shall be deemed
a default under this Mortgage and the Note, for which the holder of this
Mortgage may, at its option, declare the entire unpaid balance of the subject
Mortgage and Note to be immediately due and payable.
All leases or subleases hereafter entered into by Mortgagor with respect to
the Mortgaged Property or any part thereof, shall be subordinate to the lien
of this Mortgage unless expressly made superior to this Mortgage in the
manner hereinafter provided, At any time or times Mortgagee may execute and
record in the appropriate Office of the Register or County Clerk of Orange
County, a Notice of Subordination reciting that the lease or leases therein
described shall be superior to the lien of this Mortgage. From and after the
recordation of such Notice of Subordination, the lease or leases therein
described shall be superior to the lien of this Mortgage and shall not be
extinguished by any foreclosure sale hereunder.
ARTICLE III
ENVIRONMENTAL CONDITION OF PREMISES
3.01 Environmental Condition of Property. Mortgagor hereby warrants and
represents to Mortgagee without any investigation and subject to the
limitations set forth in the Loan Agreement:
(a) To the best of Mortgagor's knowledge, the premises are now and at all
times hereafter will continue to be in full compliance with all federal,
state and local environmental laws and regulations, including but not
limited to, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (CERCLA), Public Law No. 96-510, 94 Stat. 2767,
and the Superfund Amendments and Reauthorization Act of 1986 (SARA),
Public law No. 99499, 100 Stat. 1613, and
(b) (i) To the best of Mortgagor's knowledge, as of the date hereof there
are no hazardous materials, substances, waste or other environmentally
regulated substances (including without limitation, any materials
containing asbestos) located on, in or under the Premises or used in
connection therewith, or (ii) Mortgagor has fully disclosed to
Mortgagee in writing the existence, extent and nature of any such
hazardous material, substance, waste or other environmentally regulated
substance, currently present or which Mortgagor is legally authorized
and empowered to maintain on, in or under the Premises or use in
connection therewith, Mortgagor has obtained and will maintain all
licenses, permits and approvals required with respect thereto, and is
and will remain in full compliance with all of the terms, conditions
and requirements of such licenses, permits and approvals. Mortgagor.
further warrants and represents that it will promptly notify Mortgagee
of any adverse change in the environmental condition of the Premises or
in the nature or extent of any hazardous materials, substances or
wastes maintained on, in or under the Premises or used in connection
therewith, and will transmit to Mortgagee copies of any citations,
orders, notices or other material governmental or other communication
received with respect to any other hazardous materials, substances,
waste or other environmentally regulated substance affecting the
Premises.
3.02 Indemnification. Mortgagor hereby indemnifies and holds harmless
Mortgagee from and against any and all damages, penalties, fines,
claims, suits, liabilities, costs, judgments and expenses (including
attorneys', consultant's or expert's fees) of every kind and nature
incurred, suffered by or asserted against Mortgagee as a direct or
indirect result of:
(i) any warranty or representation made by Mortgagor in this paragraph being
or becoming false or untrue in any material respect or
(ii) any requirement under the law, regulation or ordinance, local, state or
federal regulating the removal or elimination of any hazardous
materials, substances, waste or other environmentally regulated
substances, placed, deposited, disposed of, stored on the Premises
subsequent to the date of this Mortgage and during the term of the Note
or any extension thereof.
Mortgagor's obligations hereunder shall not be limited to any extent by the
term of the Note, and, as to any act or occurrence prior to payment in full
and satisfaction of said Note which gives rise to liability hereunder, shall
continue, survive and remain in full force and effect notwithstanding
foreclosure of this Mortgage, where Mortgagee is the purchaser at the
foreclosure sale, or delivery of a deed in lieu of foreclosure to Mortgagee.
ARTICLE IV
SECURITY AGREEMENT
4.01 Creation of Security Interest. Mortgagor hereby grants to Mortgagee a
security interest in any and all personal property included within the
Mortgaged Property (herein the "Personal Property") located on or at
the Premises, including without limitation any and all property of
similar type or kind hereafter located on or at the Premises for the
purposes of securing all obligations of Mortgagor set forth in this
Mortgage. This instrument is a self-operative security agreement with
respect to the above described property, but Mortgagor agrees to
execute and deliver on demand such other security agreements, financing
statements and other instruments as Mortgagee may request.
4.02 Warranties, Representations and Covenants of Mortgagor. Mortgagor hereby
warrants, represents and covenants as follows:
(a) Except for the security interest granted hereby, Mortgagor is, and as to
portions of the, Personal Property to be acquired after the date hereof
will be, the sole owner of the Personal Property, free from any adverse
lien, security interest, encumbrance or adverse claims thereon of any
kind whatsoever. Mortgagor shall notify Mortgagee of, and shall defend
the Personal Property against, all claims and demands of all persons at
any time claiming the same or any interest therein.
(b) Mortgagor shall not lease, sell, convey or in any manner transfer the
Personal Property without the prior written consent of Mortgagee.
(c) The Personal Property is not and shall not be used or bought for
personal, family or household purposes.
(d) The Personal Property shall be kept on or at the Premises and Mortgagor
will not remove the Personal Property from the Premises without the
prior written consent of Mortgagee, except such portions or items of
Personal Property which are consumed or worn out in ordinary usage, all
of which shall be promptly replaced by Mortgagor. s.
(e) Mortgagor maintains a place of business in the State of Florida and
Mortgagor shall immediately notify Mortgagee in writing of any change in
its place of business as set forth in the beginning of this Mortgage.
(f) At the request of the Mortgagee, Mortgagor shall join Mortgagee in
executing one or more financing statements and renewals and amendments
thereof pursuant to the Uniform Commercial Code of Florida in form
satisfactory to Mortgagee, and will pay the cost of filing the same in
all public offices wherever filing is deemed by Mortgagee to be
necessary or desirable.
(g) All covenants and obligations of Mortgagor contained herein relating to
the Mortgaged Property shall be deemed to apply to the Personal Property
whether or not expressly referred to herein.
(h) This Mortgage constitutes a Security Agreement as that term is used in
the Uniform Commercial Code of Florida.
ARTICLE V
REMEDIES UPON DEFAULT
5.01 Events of Default. Any one or more of the following shall constitute a
default under this Mortgage and the Note hereby secured:
(a) Failure of Mortgagor to make one or more payments required by said Nots
on the due date thereof.
(b) Failure of Mortgagor to pay the amount of any costs, expenses or fees
(including counsel fees) of the Mortgagee, with interest thereon, as
required by any provision of this Mortgage.
(c) Failure to exhibit to the Mortgagee, within ten (10) days after demand,
receipts showing payment of real estate taxes and assessments.
(d) Except as hereinbefore permitted, the actual or threatened alteration,
demolition or removal of any building on the Premises without written
consent of the Mortgagee.
(e) Failure to maintain the Improvements on the Premises as herein required,
free of any liens placed or threatened during the term hereof.
(f) Failure to comply with any requirements or order or notice of violation
of law or ordinance issued by any governmental department claiming
jurisdiction over the Mortgaged Property within three (3) months from
the issuance thereof, or before any such violation becomes a lien
against the Mortgaged Property, whichever first occurs.
(g) Failure of Mortgagor or others to comply with or perform any other
warranty, covenant or agreement contained herein, in the Note, in the
Loan Agreement, if any, Commitment Letter or in any other document
executed by Mortgagor in conjunction with this transaction, of even
date herewith.
(h) Any breach of any covenant or warranty or material untruth of any
representation of Mortgagor contained in this Mortgage, or the Note or
any guaranty executed in conjunction. herewith.
(a) The institution of any bankruptcy, reorganization or insolvency
proceedings against the then owner or Mortgagor in possession of the
Mortgaged Property, or any guarantee, or the appointment of a receiver
or a similar official with respect to all or a substantial part of the
properties of the then owner or Mortgagor in possession of the
Mortgaged Property and a failure to have such proceedings dismissed or
such appointment vacated within a period of ninety (90) days.
10) The institution of any voluntary bankruptcy, reorganization or
insolvency proceedings by the then owner or Mortgagor in possession of
the Mortgaged Property, or any guarantor, or the appointment of a
receiver or a similar official with respect to all or a substantial part
of the properties of the then owner or Mortgagor in possession of the
Mortgaged Property at the instance of the then owner or Mortgagor in
possession of the Mortgaged Property.
11) The assertion or making of any levy, seizure, forfeiture action,
mechanic's or materialman's lien or attachment on the Mortgaged Property
or any part thereof.
12) if default shall occur in any loan now or hereafter in existence between
Mortgagee and Mortgagor or any mortgagee which the Mortgagor or any
guarantor has any interest whatsoever, and, conversely, the occurrence
of an Event of Default hereunder shall also constitute a default under
any such other loan.
(13) The occurrence of any Event of Default under the Note, or any bank
agreement or guaranty, whether or not such event is specifically set
forth herein.
Unless specifically set forth in the applicable provision of this Mortgage,
Mortgagor shall have a ten (10) day right to cure after written notice with
respect to Events of.. Default involving the payment of any sum of money due
hereunder or under the Loan Documents and a thirty (30) day right to cure
after written notice with respect to any other Event of Default.
5.02 Default Rate. The Default Rate shall be the highest rate allowable by
law at the time of default, provided, however, that at no time shall
any interest or charges in the nature of interest be taken, exacted,
received or collected which would exceed the maximum rate permitted by
law.
5.03 Acceleration Upon Default, Additional Remedies. In the event that one or
more defaults as above provided shall occur, and subject to the notice
requirements and curative periods set forth herein the remedies
available to Mortgagee shall include, but not necessarily be limited
to, any one or more of the following:
(A) Mortgagee shall declare the entire unpaid balance of the Note
immediately without notice.
(B) Mortgagee may take immediate possession of the Mortgaged Property or
any part thereof (which Mortgagor agrees to surrender to'Mortgagee) and
manage, control or lease the same to such person or persons and at such
rental as it may deem proper and collect all rents, issues and profits,
therefrom, including those past due as well as those thereafter
accruing, with the right in the Mortgagee to cancel any lease or
sublease for any cause which would entitle Mortgagor to cancel the same;
to make such expenditures for maintenance, repairs and costs of
operation as it may deem advisable; and after deducting the cost
thereof and such reasonable fee or compensation as may be awarded by a
court of law in any action hereunder, to apply the residue to the
payment of any sums which are unpaid hereunder or under the Note. The
taking of possession under this paragraph shall not prevent concurrent
or later proceedings for the foreclosure sale of the Mortgaged Property
as provided elsewhere herein.
(C) Mortgagee may apply to any court of competent jurisdiction for the
appointment of a receiver or similar official to manage and operate the
Mortgaged Property, or any part thereof, and to apply the net rents and
profits therefrom to the payment of the interest and/or principal of
said Note and/ or any other obligations of Mortgagor to Mortgagee
hereunder. In event of such application, Mortgagor agrees to consent to
the appointment of such receiver or similar official, and agrees that
such receiver or similar official may be appointed without notice to
Mortgagor, with regard to the adequacy of any security for the debts
and with regard to the solvency of Mortgagor or any other person, firm
or corporation who of which may be liable for the payment of the Note
or any other obligation of Mortgagor hereunder.
(D) Without declaring the entire unpaid principal balance due, the Mortgagee
may foreclose only as to the sum past due, without injury to this
Mortgage or the displacement or impairment of the remainder of the lien
thereof, and at such foreclosure sale the property shall be sold
subject to all remaining items of indebtedness; and Mortgagee may,
again foreclose, in the same manner, as often as there may be any sum
past due.
5.04 Additional Provisions. Mortgagor expressly agrees, on behalf of itself,
its successors and assigns and any future owner of the Mortgaged
Property, or any part thereof or interest therein, as follows:
(A) All remedies available to Mortgagee with respect to this Mortgage shall
be cumulative and may be pursued concurrently or successively. No delay
by Mortgagee in exercising any such remedy shall operate as a waiver
thereof or preclude the exercise thereof during the continuance of that
or any subsequent default.
(B) In the event of any foreclosure sale hereunder, all net proceeds shall
be available for application to the indebtedness hereby secured whether
or not such proceeds may exceed the value of the Mortgaged Property for
unpaid taxes, liens assessments and any other costs relating to the
Mortgaged Property.
(C) The only limitation upon the foregoing agreements as to the exercise of
Mortgagee's remedies is that there shall be but one full and complete
satisfaction of the indebtedness secured hereby.
(D) The Mortgagor shall duly, promptly and fully perform each and every
term and provision of any Construction or other Loan Agreement which has
been executed and delivered by the parties hereto simultaneously with
the execution and delivery hereof, the terms of which Construction or
other Loan Agreement are incorporated herein by reference. The lien of
this Mortgage secures the payment of all sums payable to Mortgagee and
the performance of all covenants and agreements of Mortgagor under the
terms of any Construction or other Loan Agreement.
5.05 Remedies Not Exclusive. Mortgagee shall be entitled to enforce payment
and performance of any indebtedness or obligations secured hereby and
to exercise all rights and powers under this Mortgage or the Note or
under any other agreement or any laws now or hereafter in force,
notwithstanding some or all of the said indebtedness and obligations.
secured hereby may now or hereafter be otherwise secured, whether by
mortgage, deed of trust, pledge, lien, assignment or otherwise. Neither
the acceptance of this Mortgage nor its enforcement shall prejudice or
in any manner affect Mortgagee's right to realize upon or enforce any
other security now or hereafter held by Mortgagee, it being agreed that
Mortgagee shall be entitled to enforce this Mortgage and any other
security now or hereafter held by Mortgagee in such order and manner as
Mortgagee may in its absolute discretion determine. No remedy herein
conferred upon or reserved to Mortgagee is intended to be exclusive of
any other remedy herein or by law provided or permitted, but each shall
be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by
statute. Every power, or remedy . given to Mortgagee or to which it may
be otherwise entitled, may be exercised, concurrently or independently,
from time to time and as often as may be deemed expedient by Mortgagee
acrd it may pursue inconsistent remedies.
NON-RECOURSE
Notwithstanding anything to the contrary herein, neither Mortgagor, nor any
General Partner of Mortgagor, shall have personal liability for the debt
secured by this Mortgage and Security Agreement, and any recourse shall be
limited to the property secured by the Mortgage of even date, except as
otherwise provided herein. If Mortgagor shall fail to perform any covenant or
condition of this Mortgage and Security Agreement and as a consequence of
such default, Mortgagee shall recover a money judgement against Mortgagor,
such judgement shall be satisfied only out of the proceeds of the sale of the
collateral securing the Loan except with respect (i) to taxes and assessments
levied against the Real. Property (ii) insurance proceeds required to be paid
under the terms of the Loan Documents or (iii) the costs of any damage to the
Real Property resulting from Borrower's failure to maintain the Real Property
in accordance with commercially reasonable standards.
ARTICLE VI
MISCELLANEOUS
6.01 Corporate Existence. To the extent that the Mortgaged Property shall be
owned or held by a corporation, such corporation shall at all times
maintain its corporate existence and shall be fully authorized to do
business in the State of Florida and shall maintain in the State of
Florida a duly authorized registered agent for the service of process.
To the extent that the Mortgaged Property shall be owned or held by a
limited partnership, such partnership shall at all times maintain its
registration with the State of Florida and otherwise comply with the
requirements of Florida law to maintain the legal existence thereof.
Failure to comply with such obligations shall be a default under this
Mortgage. Within one hundred twenty (120) days after the expiration of
the time for filing its annual report and the payment of the corporate
taxes, if appropriate, in the State of Florida, Mortgagor will furnish
to Mortgagee a certificate of good standing or other evidence
satisfactory to Mortgagee to show compliance with the provisions of this
Section.
6.02 Statements by Mortgagor. Mortgagor, within three (3) days after request
in person or within ten (10) days after request by mail, will furnish
to Mortgagee or any person, firm or corporation designated by
Mortgagee, a duly acknowledged written statement setting forth the
amount of the debt secured by this Mortgage, and stating either that no
offsets or defenses exist against such debt, or, if such offsets or
defenses are alleged to exist, full information with respect to such
alleged offsets and/or defenses.
6.03 Successors and Assigns. The provisions hereof shall be binding upon and
shall inure to the benefit of the Mortgagor, its successors and
assigns, including without limitation subsequent owners of the Premises
or the leasehold estate of the Premises or any part thereof; shall' be
binding upon and shall inure; to the benefit of Mortgagee, its
successors and assigns and any future holder of the Note, and any
successors or assigns of any future holder of the Note. In the event
the ownership of the Mortgaged Property or any leasehold estate that
may be covered by this Mortgage, becomes vested in a person other than
Mortgagor, Mortgagee may, without notice to Mortgagor, deal with such
successor or successors in interest with reference to this instrument
and the Note in the same manner as with the Mortgagor, and may alter
the interest rate and/or alter or extend the terms of payments of the
Note without notice to Mortgagor hereunder or under the Note hereby
secured or the lien or priority of this Mortgage with respect to any
part of the Mortgaged Property covered hereby, but nothing herein
contained shall serve to relieve Mortgagor of any liability under the
Note or this Mortgage (or any other agreement executed in conjunction
therewith) unless Mortgagee shall expressly release Mortgagor in
writing. Mortgagor and any transferee or assignee shall be jointly and
severally liable for any documentation or intangible taxes imposed as a
result of any transfer or assumption.
6.04 Notices. All notices, demands and requests given by either party hereto
to the other party shall be in writing. All notices, demands and
requests by the Mortgagee to the Mortgagor shall be deemed to have been
properly given if sent by United States registered or certified mail,
postage prepaid, addressed to the Mortgagor at the address as the
Mortgagor may from time to time designate by written notice to the
Mortgagee, given as herein required. All notices, demands and requests
by the Mortgagor to the Mortgagee shall be deemed to have been properly
given if sent by United States registered or certified mail, postage
prepaid, addressed to the Mortgagee, or to such other address as the
Mortgagee may from time to time designate by written notice to the
Mortgagor given as herein required. Notices, demands and requests given
in the manner aforesaid shall be deemed sufficiently served or given
for all purposes hereunder at the time such notice, demand or request
shall be deposited in any post office or branch post office regularly
maintained by the United States Government. All notices to Mortgagor
shall also be sent to the following (although the inadvertent failure
to do so shall not be deemed to be a failure by Mortgagee to give
proper notice hereunder):
Quarles and Brady
Attn: Leo J. Salvatori, Esq.
Barnett Center, Suite 300 4501
Tamiami Trail North Naples, Florida 33940
The Mortgagor shall deliver to the Mortgagee, promptly upon receipt of same,
copies of all notices, certificates, documents and instruments received by it
which materially affect any part of the"Mortgaged Property covered hereby,
including, without limitation, notices, notices from any lessee or sublessee
claiming that the Mortgagor is in default under any terms of any lease or
sublease.
6.05 Modifications in Writing. This Mortgage may not be changed, terminated
or modified orally or in any other manner than by an instrument in
writing signed by the party against whom enforcement is sought.
6.06 Captions. The captions or headings at the beginning of each Section
hereof are for the convenience of the parties and are not a part of
this Mortgage.
6.07 Invalidity of Certain Provisions. If the lien of this Mortgage is
invalid or unenforceable as to any part of the debt, or if the lien is
invalid or unenforceable as to any part of the Mortgaged Property, the
unsecured portion of the debt shall be completely paid prior to the
payments of the secured portion of the debt, and all payments made on
the debt, whether voluntary or otherwise, shall be considered to have
been first paid on and applied to the full payment of that portion of
the debt which is not secured or fully secured by the lien of this
Mortgage.
6.08 No Merger. If both the lessor's and lessee's estates under any lease or
any portion thereof which constitutes a part of the Mortgaged Property
shall at any time become vested in one owner, this Mortgage and the
lien created hereby shall not be destroyed or terminated by application
of the doctrine of merger and, in such event, Mortgagee shall continue
to have and enjoy all of the rights and privileges of Mortgagee as to
the separate estates. In addition, upon the foreclosure of the lien
created by this Mortgage on the Mortgaged Property pursuant to the
provisions hereof, any leases or subleases then existing and created by
Mortgagor shall not be destroyed or terminated by application of the
law of merger or as a result of such foreclosure sale shall so elect. No
act by or on behalf of Mortgagee or any such purchaser shall constitute
a termination of any lease or sublease unless Mortgagee or such
purchaser shall give written notice thereof to such tenant or
subtenant.
6.09 Governing Law and Construction of Clauses. This Mortgage shall be
governed and construed by the laws of the State of Florida. No act of
the Mortgagee shall be construed as an election to proceed under any
one provision of the Mortgage or of the applicable statutes of the
State of Florida to the exclusion of any other such provision, anything
herein or otherwise to the contrary notwithstanding.
6.10 Transfer. No portion of the property encumbered by this Mortgage, or any
interest therein, shall be sold, conveyed, encumbered or otherwise
transferred by the Mortgagor, without Mortgagee's prior written
consent, which consent shall not be unreasonably withheld.
6.11 Books and Records. Mortgagor shall furnish annually to Mortgagee
complete, true and accurate books of accounts and records reflecting
the results of the operation of the Mortgaged Property. Mortgagor shall
also furnish to Mortgagee within ninety (90) days after the end of each
fiscal year of Mortgagor a balance sheet and a statement of income and
expenses, both in reasonable detail, prepared in a format acceptable to
the Mortgagee, and if any of the Mortgaged Property is rented or
leased, a rent schedule of a Mortgaged Property, certified by an
accounting officer of Mortgagor, showing the name of each tenant and
the space occupied, the lease expiration date and the rent paid.
Mortgagor shall also provide Mortgagee with monthly statements of
income and expenses on or before the fifteenth (15th) day of each
succeeding month.
6.12 Financial Statements. If requested by Mortgagee, Mortgagor will within
one hundred twenty (120) days after the end of each fiscal year,
furnish to Mortgagee a complete financial statement Including profit
and loss and income and expense statements balance sheet and
reconciliation of surplus.
IN WITNESS WHEREOF, Mortgagor has hereunto set hand and seal all done as of
the day and year first hereinbefore written.
Signed, sealed and delivered in the presence of:
ABR SPECTRUM, LTD., a Florida limited partnership
ATTEST:
STATE OF FLORIDA
COUNTY OF Pinellas
The foregoing instrument was acknowledged before me this 30th day of October,
1992, by Robert M. Reed II, as general partner of ABR SPECTRUM, LTD., a
limited partnership, on behalf of the partnership, who is personally known to
me or who has produced Florida driver's license as identification and who did
(did not) take an oath.
(Seal)
(Signature of person taking acknowledgment)
(Name of officer taking acknowledgment typed, printed or stamped)
(title or rank)
(Serial number, if any)
"ADDENDUM"
WAIVER OF JURY TRIAL. MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT HE MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED ON THIS MORTGAGE, OR ARISING JUT OF, UNDER OR IN
CONNECTION WITH THIS MORTGAGE OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONNECTION WITH THIS MORTGAGE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT
HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE MORTGAGEE'S ACCEPTING
THIS MORTGAGE FROM MORTGAGOR.
MORTGAGOR
ABR SPECTRUM, LTD., a Florida limited partnership
By
General Partner
EXHIBIT "A" LEGAL DESCRIPTION
A Part of Tract 9, MAITLAND CENTER SECTION THREE, Maitland, Orange County,
Florida, according to the plat thereof as recorded in Plat Book 10, page 10,
public records Orange County, Florida,. more particularly described as
follows:
Begin at the Southwest corner of SUN BAY CLUB UNIT T, As shown on the plat
thereof as recorded in Condominium Plat Book 7, pages 70 through 87, public
records of Orange County, Florida; thence North 89056`05" Fast along the
South boundary of said SUN BAY CLUB UNIT i a distance of 42.00 feet; thence
South 78003'55" East a distance of 200.00 feet; thence South 28022'30" East a
distance of 44.11 feet; thence South 69012'28" East a distance of 753.22 feet
to the Southeast corner of Tract 9; thence South 64033'33" West a distance of
1057.07 feet to a point on the West boundary of Tract 9, said. point being on
a curve concave Southwesterly, a radial line to said point bearing South
88023'40" East, thence Northerly along said West boundary, along the arc of
said curve, having a radius of 709.07 feet, through a central angle of
18047'19" a distance of 232.52 feet to a point of reverse curvature of a curve
concave Easterly, thence Northerly along said West boundary of Tract 9, along
the arc of said curve having a radius of 639.87 feet, through a central angle
of 33005`55" a distance of 369.18 feet to a point of reverse curvature of a
curve concave Westerly., thence Northerly along said West boundary of Tract
9, along the arc of said curve having a radius of 709.67 feet, through a
central angle of 15058'50" a distance of 197.77 feet to a point of tangency;
thence North 60003'55" West along said West boundary of Tract 9, a distance
of 12.97 feet to the Point of Beginning.
EXHIBIT NUMBER 10.57
# 95-028442 PINELLAS COUNTY FLA
FEB 7, 1995 11:12AM 0 FF.REC.BK 8908 PG 683
Florida
~~cum nt repared by: Esq. Michelle E. aruch, Esq.
Return to:
Rubin Baum Levin Constant Friedman & Bilzin 2500 First Union Financial Center
Miami, Florida 33131-2336 Attn: Brian L. Bilzin, Esq.
ASSIGNMENT OF MORTGAGE
AND OTHER LOAN DOCUMENTS
Control Number: 9052
ASSIGNMENT OF MORTGAGE AND OTHER LOAN DOCUMENTS dated _ November 3, 1994, by
The Chase Manhattan Bank, N.A., a national banking association, having an
address at 101 Park Avenue, New York, New York 10178 ("Assignor") to Lennar
Northeast Partners Limited Partnership, a Delaware limited partnership,
having an address at 700 N.W. 107th Avenue, Miami, Florida 33172
("Assignee").
In consideration of Ten Dollars ($10.00) and other good and valuable
consideration, the adequacy and receipt of which is hereby acknowledged,
Assignor does hereby sell, transfer, assign, deliver, set over and convey to
Assignee the following:
5. The mortgage and any amendments, modifications and supplements thereto,
all as more specifically identified on Schedule A attached hereto (the
"Mortgage"), which Mortgage encumbers the property described more
particularly therein, and secures a certain loan made to ABR Plymouth
Plaza, Ltd. a Florida limited partnership, (the "Mortgage Loan"), and
2. All other documents and instruments securing the Mortgage Loan, as more
specifically identified on Schedule A attached hereto, which have been
recorded in the real property records of the jurisdiction in which the
real property securing such Mortgage, Loan is located (collectively,
the "Assigned Documents").
TO HAVE AND TO HOLD the Mortgage and Assigned Documents, together with all
and singular the rights and privileges thereunto in any wise belonging unto
Assignee its successors and assigns, forever .
This Assignment is made without recourse and without any representation or
warranty of any kind whatsoever, express or implied, or by operation of law,
except to the extent that and only for so long as any representation or
warranty specifically set forth in that certain Loan and Real Property
Purchase Agreement dated as of September 26, 1994 (the "Purchase Agreement")
by and among The Chase Manhattan Bank, N.A. and certain of its affiliates
and Assignee survives the Closing (as defined in the Purchase Agreement).
Assignee's remedies upon a breach by Assignor of any such representation or
warranty are limited solely to those remedies of Assignee expressly set forth
in Article IX of the Purchase Agreement.
IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed by and
through its duly authorized officer this 3rd day of November, 1994.
THE CHASE MANHATTAN BANK, N.A.
Title: Vice President
Signed, sealed and delivered in the presence of:
Print Name
Print Name:A:
PINELLAS COUNTY FLA. OFF.REC.BK 8908 PG 685
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
The foregoing instrument ward acknowledged before me this 3rd day of
November, 1994 by __________as Vice President of The Chase Manhattan Bark,
N.A. a national banking
association, on behalf of the national banking association. He/she/they
personally appeared before me, is/are personally known to
(NOTARIAL SEAL] Notary:
Print Name: Lynn Garber
Notary Public, "State of New York. My commission expires:
Qualified m New York County Certificate Filed in New York County Commission
Expires December 7, 1994
sclo44is X 02-07-199: 10:44:0: RECOR
01 WR DING ENNAR 1 :-.~---
TOTAL: $19.50 BECK AMT. $19.50
if.00
SCHEDULE A
1. Mortgage Deed and Security Agreement in the original principal amount
of $2,896,000 dated November 23, 1992, and made by ABR Plymouth Plaza,
Ltd., in favor of The Chase Manhattan Bank N.A., and recorded December
3, 1992, in O.R. Book 8108, Page 2182, Public Records in and for
Pinellas County, Florida.
EXHIBIT NUMBER 10.58
INST # 95-280773 NOV 3, 1995 2:34PM
PINELLAS COUNTY FLA. F.REC.BK 9155 PG 612
This instrument was prepared by: Lennar Partners, Inc.
600 Peachtree Street, N.E. Suite 3500
Atlanta, Georgia 30308
After recording, return to: Marjie C. Nealon, Esquire RUBIN BAUM LENIN
CONSTANT FRIEDMAN & BILZIN 2500 First Union Financial Center
Miami, Florida 33131-2336
ASSIGNMENT OF MORTGAGE AND OTHERLOAN DOCUMENTS
KNOW ALL MEN BY THESE PRESENTS that LENNAR NORTHEAST PARTNERS LIMITED
PARTNERSHIP, a Delaware limited partnership ("Assignor"), with an address at
600 Peachtree Street, N.E., Suite 3500, Atlanta, Georgia 30308, for and in
consideration of the sum of Ten Dollars ($10), and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
does hereby absolutely grant, bargain, sell, transfer, assign, deliver and
set over unto BANK MIDWEST, N.A., a national banking association
("Assignee"), with an address at l 100 Main, Suite 350,. Kansas City, Missouri
64105, WITHOUT RECOURSE, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
except as set forth in Section 4.1 of that certain Loan Purchase Agreement
dated as of October 4 , 1995 between Assignor and Assignee (the "Agreement"),
all of Assignor's right, title and interest in and to the following loan
documents (collectively, the "Loan Documents"):
l. That certain Promissory Note dated November, 23, 1992 (the "Note"), made
by ABR PLYMOUTH PLAZA, LTD., a Florida limited partnership
("Borrower"), in favor of The Chase Manhattan Bank, N.A., a national
banking association ("Chase"), in the original principal amount of Two
Million Eight Hundred Ninety-Six Thousand and no/100 Dollars
($2,896,000.00), as endorsed by Allonge thereto dated November 3, 1994
from Chase to the order of Assignor.
2. That certain Mortgage Deed and Security Agreement dated November 23,
1992 (the "Mortgage") executed by Borrower in favor of Chase, recorded
December 3, 1992, in Official Records Book 8108, Page 2182, of the
Public Records of Pinellas County, Florida (the "Records"), covering
certain real property located in the County of Pinellas as more
particularly described therein, together with all the right, title and
interest of Assignor in and to the Premises, as defined therein, as
assigned to Assignor by Assignment of Mortgage and Other Loan Documents
dated November 3, 1994 and recorded in Official Records Book 8908, Page
683, of the Records.
3. That certain Collateral Assignment of Leases, Rents and Contract Rights
dated November 23, 1992, executed by Borrower in favor of Chase and
recorded on December 3, 1992, in Official Records Book 8108, Page 2202,
of the Records, as assigned to Assignor by Assignment of Assignment of
Leases and Rents dated November 3, 1994, recorded in Official Records
Book 8908, Page 679, of the Records and re-recorded contemporaneously
herewith.
4. That certain UCC-1 Financing Statement with Borrower; as debtor,
recorded on November, 23, 1992, in Official R cords Book 8108, Page
2214zof _tlie Records, as assigned to Assignee by UCC-3 Assignment
recorded in Official Records Book 8908, Page 687, of the Records.
5. That certain Indemnity Agreement dated November 23, 1992, between
Borrower and Chase.
6. Assignment and Assumption of Collateral Property dated November 3, 1994
between Chase and Assignor.
TOGETHER WITH all Assignor's right, title and interests, to the extent
assignable without consent (unless such consent is secured by Assignee), to
any title policies, third party representations, warranties, or guaranties,
insurance policies, certificate of deposit, letters of credit, performance
bonds, claims, demands, causes of action and any other rights, documents or
collateral held by Assignor solely in connection with the mortgage loan to
which the Loan Documents relate (excepting the Excluded Materials, as defined
in the Agreement).
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns
forever.
By countersignature of this Assignment of Mortgage and Other Loan Documents,
Assignee hereby accepts the foregoing Assignment and assumes all the rights
and obligations of Assignor arising out of the Loan Documents so assigned,
but such assumption of obligations shall not be deemed to include any
liability of Assignor to Borrower for damages resulting from the acts or
omissions of Assignor.
This Assignment may be executed in counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed the foregoing
Assignment as of the 31 st day of October, 1995.
WITNESSES: ASSIGNOR:
LENNAR NORTHEAST PARTNERS LIMITED PARTNERSHIP,
a Delaware limited partnership
Sign Name:
Sign Name Print Name: By: LENNAR NORTHEAST HOLDINGS, INC.,
a Florida corporation, a general partner
With, Vice President
ASSIGNEE:
BANK MIDWEST, N.A., a national banking
association]
Sign Name: Print Name:
Sign Name: Print Name:
By:
ACKNOWLEDGMENTS ON FOLLOWING PAGE.
6. Assignment and Assumption of Collateral Property dated November 3, 1994
between Chase and Assignor.
TOGETHER WITH all Assignor's right, title and interests, to the extent
assignable without consent (unless such consent is secured by Assignee), to
any title policies, third party representations, warranties, or guaranties,
insurance policies, certificate of deposit, letters of credit, performance
bonds,.claims, demands, causes of action and any other rights, documents or
collateral held by Assignor solely in connection with the mortgage loan to
which the Loan Documents relate (excepting the Excluded Materials, as defined
in the Agreement).
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns
forever.
By countersignature of this Assignment of Mortgage and Other Loan Documents,
Assignee hereby accepts the foregoing Assignment and assumes all the rights
and obligations of Assignor arising out of the Loan Documents so assigned,
but such assumption of obligations shall not be deemed to include any
liability of Assignor to Borrower for damages resulting from the acts or
omissions of Assignor.
This Assignment may be executed in counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed the foregoing
Assignment as of the 31st day of October, 1995.
WITNESSES: ASSIGNOR
LENNAR NORTHEAST PARTNERS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: LENNAR NORTHEAST HOLDINGS, INC.,
a Florida corporation, a general partner
Sign Name: By:
Print Name: Mark A. Griffith, Vice President
Sign Name: Print Name:
ASSIGNEE:
BANK MIDWEST, N.A., a national banking association
Sign Name. Print Name
ACKNOWLEDGMENTS ON FOLLOWING PAGE.
STATE OF GEORGIA )
ss:
COUNTY OF FULTON
The foregoing instrument was acknowledged before me this 30 day of October,
1995, by Mark A. Griffith, as Vice President of Lennar Northeast Holdings,
Inc., a Florida corporation, on behalf of such corporation in its capacity as
a general partner and on behalf of Lennar Northeast Partners Limited
Partnership, a Delaware limited partnership. Such individual is personally
known to me or has produced a driver's license as identification.
My Commission Expires:
NOTARIAL SEAL
Sign Name:
Print Name:
Notary Public, State of Florida - Serial No. (none if blank):
STATE OF OHIO ) SS: COUNTY OF )
The foregoing instrument was acknowledged before me this day of October,
1995, by as Vice President of BANK MIDWEST, N.A., by order of the Board of
Directors of said association and on behalf of said association; said
individual is personally known to me or has produced a driver's license as
identification.
Sign Name Print Name
My Commission Expires: Notary Public, State of Ohio
Serial No. (none if blank):__
[NOTARIAL SEAL]
STATE OF GEORGIA )
ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of October,
1995, by Mark A. Griffith, as Vice President of Lennar Northeast Holdings,
Inc., a Florida corporation, on behalf of such corporation in its capacity as
a general partner and on behalf of Lennar Northeast Partners Limited
Partnership, a Delaware limited partnership. Such individual is personally
known to me or has produced a driver's license as identification. -
Sign Name: - Print Name:
My Commission Expires.
Notary Public, State of Georgia Serial No. (none if blank):
[NOTARIAL SEAL]
STATE OF OHIO )
COUNTY OF ) SS:
The forgoing Instrument was acknowledged before me this 30th, day of October,
1995, by , as Vice President of BANK MIDWEST, N.A., by order of the Board of
Directors of said association and on behalf of said association; said
individual is personally known to me or has produced a driver's license as
identification.
Sign Name Print Name:
My Commission Expires:
Notary Public, State of Missouri;
Serial No. (none if blank):
[NOTORIAL. SEAL
ROBIN L. ROZELL-ESTENBAUM
Notary Public-Notary Seal
STATE OF MISSOURI Ray Co"
My Commission Expires: Aug. 9, 1999
EXHIBIT NUMBER 10.59
PROMISSORY NOTE
$2,896,000.00
Tampa, Florida
November 23, 1992
FOR VALUE RECEIVED the undersigned, ABR PLYMOUTH PLAZA, LTD., a Florida
limited partnership ("Maker"), promises to pay, without grace, to the order
of THE CHASE MANHATTAN BANK, N.A., a national banking association, and its
successors or assigns, together with any other holder hereof ("Holder"), at
101 Park Avenue, New York, New York 10178, or such other place as Holder may
from time to time designate in writing, the principal sum of Two Million
Eight Hundred Ninety Six Thousand and ?To/100 Dollars ($2,896,000.00), plus
accrued interest, to be paid in lawful money of the United States of America,
as follows:
7. From the date hereof through the first anniversary date of this Note,
this Note shall accrue interest computed at the rate of three percent
(3%) per annum on the outstanding principal balance.
8. From the first anniversary date of this Note through the second
anniversary date of this Note, this Note shall accrue interest computed
at the rate of three and one half percent (3.5%) per annum on the
outstanding principal balance.
9. From the second anniversary date of this Note through the fourth
anniversary date of this Note, this Note shall accrue interest computed
at the rate of five percent (5%) per annum on the outstanding principal
balance.
10. From the fourth anniversary date of this Note through the fifth
anniversary date of this Note, this Note shall accrue interest computed
daily at the rate equal to the "Prime Rate", as hereinafter defined, but
in no event shall the interest rate be greater than the maximum rate
of interest allowed to be contracted by applicable law.
"Prime Rate" shall mean the prime commercial lending rate as announced from
time to time by The Chase Manhattan Bank (N.A.) at its principal office in
New York City. Changes in the Prime Rate shall be effective on the effective
date announced.
THE EXCISE TAX ON DOCUMENTS HAS BEEN PAID ON THIS NOTE AS REQUIRED BY LAW AND
STAMPS HAVE BEEN AFFIXED TO THE MORTGAGE AND CANCELED.
11. If the maturity date of this Note is extended pursuant to the terms
hereinafter described, from the fifth anniversary date of this Note
through the seventh anniversary date of this Note, this Note shall
accrue interest computed daily at the rate equal to the Prime Rate,
plus one percentage point (1%) per annum on the outstanding principal
balance, but in no event shall the interest rate be greater than the
maximum rate of interest allowed to be contracted by applicable law.
12. Twenty Three (23) payments of accrued interest, only, shall be due and
payable commencing on January 1, 1993, and continuing on the same day
of every month thereafter.
13. Thirty Six (36) installments of principal plus accrued interest, based
on a thirty year amortization period, shall be due and payable
commencing on December 1, 1994, and continuing on the same day of every
month thereafter. Beginning on the fourth anniversary date of this
Note, each time that the Prime Rate changes, monthly principal and
interest payments shall be recalculated based on an amortization period
equal to thirty years minus the number of months that have elapsed from
the fourth anniversary of this Note until the date of such change in
the Prime Rate.
14. The remaining outstanding principal indebtedness, together with all
accrued and unpaid interest thereon, shall be due and payable on
November 22, 1997 (the "Maturity Date"), unless acceleration is made by
Holder pursuant to the provisions hereof. Provided, however, at the
option of Maker, the Maturity Date may be extended for twenty four (24)
additional months, provided no event of default, or event which, upon
the passage of any applicable grace period, would constitute an event
of default, exists in this Note, the Mortgage Deed and Security
Agreement or any Loan Document, as hereinafter defined, given in
connection herewith or therewith, and provided Maker gives Holder
written notice of its intention to extend the term not less than thirty
(30) days prior to the Maturity Date and further provided that Maker
pays to Holder a principal payment in the amount of Two Hundred Ninety
Thousand and No/100 Dollars ($290,000.00). If the maturity date of this
Note is extended, from the fifth anniversary date of this Note an
additional Twenty Four (24) installments of principal plus accrued
interest, based on the amortization period described in paragraph (__)
above, shall be due and payable commencing on December 1, 1997, and
continuing on the same day of every month thereafter until November 22,
1999, at which time the remaining outstanding principal indebtedness,
together with all accrued and unpaid interest thereon, shall be due and
payable.
15. Interest on this Note shall be computed on the basis of a 365-day or
366--day year as the case may be for the actual number of days
outstanding.
16. This Note may be prepaid in whole or in part at any time, without
penalty or premium. Any payment or prepayment hereunder shall be
applied first to unpaid costs of collection and late charges, if any,
then to accrued and unpaid interest and the balance, if any, to
installments of principal, in the inverse order of their maturity.
17. After maturity or acceleration, this Note shall bear interest at the
Default Interest Rate until paid in full.
18. Maker shall have the opportunity to cure any monetary default no more
than five (5) days after receiving written notice of the monetary
default from Holder.
This Note is secured by a Mortgage Deed and Security Agreement (the
"Mortgage") encumbering certain real property located in Pinellas Countv,
Florida (the "Premises"), by a Collateral Assignment of Leases, Rents and
Contract Rights and by UCC-1 Financing Statements, all of even date herewith.
The foregoing and all other agreements, instruments and documents delivered
in connection therewith and herewith are collectively referred to as the
"Loan Documents."
This Note and the rights and obligations of the parties hereunder shall in
all respects be governed by, and construed and enforced in accordance with,
the laws of the State of New York (without giving effect to New York's
principles of conflicts of law).
Maker shall have no obligation to pay interest or payments in the nature of
interest in excess of the maximum rate of interest allowed to be contracted
for by law, as changed from time to time, applicable to this Note (the
"Maximum Rate"). Any interest in excess of the Maximum Rate paid by Maker
("excess sum") shall be credited as a payment of principal, or, if Maker so
requests in writing, returned to Maker, or, if the indebtedness and other
obligations evidenced by this Note have been paid in full, returned to Maker
together with interest at the same rate as was paid by Maker during such
period. Any excess sum credited to principal shall be credited as of the date
paid to Holder. The Maximum Rate varies from time to time and from time to
time there may be no specific maximum rate. Holder may, without such action
constituting a breach of any obligations to Maker, seek judicial determination
of the applicable rate of interest, and its obligation to pay or credit any
proposed excess sum to Maker.
The "Default Interest Rate" shall be the maximum rate and, in the event no
specific maximum rate is applicable, the Maximum Rate shall be twenty-five
percent (25%) per annum if (i) the face amount of this Note is greater than
$500,000, or (ii) this Note is secured by a first mortgage lien on real
estate or other forms of collateral described in Section 665.077, Florida
Statutes; otherwise, it shall be eighteen percent (18%) per annum.
Holder shall have the right to declare the total unpaid balance hereof to be
immediately due and payable in advance of the Maturity Date upon the failure
of Maker to pay when due any payment of principal or interest or other amount
due hereunder; or upon the occurrence of an event of default pursuant to any
other Loan Documents now or hereafter evidencing, securing or guarantying
payment of this Note or if Maker, any guarantor or other person primarily or
secondarily responsible for the repayment of this Note shall die, become
insolvent or declare a voluntary or involuntary petition of bankruptcy.
Exercise of this right shall be without notice to Maker or to any other
person liable for payment hereof, notice of such exercise being hereby
expressly waived.
Any payment hereunder not paid when due (at maturity, upon acceleration or
otherwise) shall bear interest at the Default Interest Rate from the due date
until paid.
Provided Holder has not accelerated this Note, Maker shall pay Holder a late
charge of five percent (5%) of any required payment which is not received by
Holder when said payment is due. The parties agree that said charge is a fair
and reasonable charge for the late payment and shall not be deemed a penalty.
Time is of the essence hereunder. In the event that this Note is collected by
law or through attorneys at law, or under advice therefrom, Maker agrees to
pay all costs of collection, including reasonable attorneys' fees, whether or
not. suit is brought, and whether incurred in connection with collection,
trial, appeal, bankruptcy or other creditors' proceedings or otherwise.
Acceptance of partial payments or payments marked "payment in full" or "in
satisfaction" or words to similar effect shall not affect the duty of Maker
to pay all obligations due hereunder, and shall not affect the right of
Holder to pursue all remedies available to it under any Loan Documents.
The remedies of Holder shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of Holder, and
may be exercised as often as occasion therefor shall arise. No action or
omission of Holder, including specifically any failure to exercise or
forbearance in the exercise of any remedy, shall be deemed to be a waiver or
release of the same, such waiver or release to be effected only through a
written document executed by Holder and then only to the extent specifically
recited therein. A waiver or release with reference to any one event shall
not be construed as continuing or as constituting a course of dealing, nor
shall it be construed as a bar to, or as a waiver or release of, any
subsequent remedy as to a subsequent event.
Maker hereby consents and submits to the jurisdiction of the courts of the
State of Florida, and, notwithstanding its place of residence or organization
or the place of execution of this Note, any litigation relating hereto,
whether arising in contract or tort, by statute or otherwise, shall be
brought in (and, if brought elsewhere, may be transferred to) a State court
of competent jurisdiction in Pinellas County, Florida.
Any notice to be given or to be served upon any party hereto in connection
with this Note, whether required or otherwise, may be given in any manner
permitted under the Loan Documents.
If more than one party shall execute this Note, the term "Maker" shall mean
all parties signing this Note, who shall be jointly and severally obligated
hereunder. The term "other person liable for payment hereof" shall include
any endorser, guarantor, surety or other person now or hereafter primarily or
secondarily liable for the payment of this Note, whether by signing this or
another instrument.
Whenever the context so requires, the neuter gender includes the feminine
and/or masculine, as the case may be, and the singular number includes the
plural, and the plural number includes the singular.
Maker and any other person liable for the payment hereof respectively, hereby
(a) expressly waive any valuation and appraisal, presentment, demand for
payment, notice of dishonor, protest, notice of nonpayment or protest, all
other forms of notice whatsoever, and diligence in collection; (b) consent
that Holder may, from time to time and without notice to any of them or
demand, (i) extend, rearrange, renew or postpone any or all payments, (ii)
release, exchange, add to or substitute all or any part of the collateral for
this Note, and/or (iii) release Maker (or any co-maker) or any other person
liable for payment hereof, without in any way modifying, altering, releasing,
affecting or limiting their respective liability or the lien of any security
instrument; and (c) agree that Holder, in order to enforce payment of this
Note against any of them, shall not be required first to institute any suit
or to exhaust any of its remedies against Maker (or any co-maker) or against
any other person liable for payment hereof or to attempt to realize on any
collateral for this Note.
MAKER AND ANY OTHER PERSON LIABLE FOR PAYMENT HEREOF, BY EXECUTING THIS NOTE
OR ANY OTHER DOCUMENT CREATING SUCH LIABILITY, WAIVE THEIR RIGHTS TO A TRIAL
BY JURY IN ANY ACTION, WHETHER ARISING IN CONTRACT OR TORT, BY STATUTE OR
OTHERWISE, IN ANY WAY RELATED TO THIS NOTE. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO MAKER AND NO WAIVER OR LIMITATION
OF HOLDER'S RIGHTS UNDER THIS PARAGRAPH SHALL BE EFFECTIVE UNLESS IN WRITING
AND MANUALLY SIGNED ON HOLDER'S BEHALF.
Maker acknowledges that the above paragraph has been expressly bargained for
by Holder as part of the loan evidenced hereby and that, but for Maker's
agreement and the agreement of any other person liable for payment hereof
thereto, Holder would not have extended the loan for the term and with the
interest rate provided herein.
The liability of Maker with respect to the payment of principal and interest
hereunder shall be "non-recourse, " and, accordingly, Holder's source of
satisfaction of said indebtedness and Maker's other obligations hereunder and
under the other Loan Documents shall be limited to the Premises and Holder's
receipt of the rents, issues, and profits from the Premises and Holder shall
not seek to procure payment out of any other assets of Maker, or any person
or entity comprising Maker, or to seek judgment for any sums which are or
may be payable under this Note or under any of the other Loan Documents, as
well as any claim or judgment (except as hereafter provided) for any
deficiency remaining after foreclosure of -the Mortgage. Notwithstanding the
above, nothing herein contained shall be deemed to be a release or impairment
of the indebtedness evidenced by this Note or the security therefor intended
by the other Loan Documents, or be deemed to preclude Holder from exercising
its rights to foreclose the Mortgage or to enforce any of its other rights or
remedies under the Loan Documents.
Notwithstanding the foregoing, it is expressly understood and agreed that the
aforesaid limitation on liability shall in no way affect or apply to the
Maker's continued personal liability for:
1. fraud or misrepresentation made in or in connection with this Note or
any instrument governing, securing or pertaining to the payment hereof;
2. failure to pay taxes or assessments prior to delinquency, or to pay
charges for labor, materials or any other charges which can create
liens on any portion of the Premises;
3. the misapplication of (i) proceeds of insurance covering any portion of
the Premises; or (ii) proceeds of the sale or condemnation of any
portion of the Premises; or (iii) rentals received by or on behalf of
the Maker subsequent to the date on which the Holder makes written
demand therefor pursuant to any of the Loan Documents;
4. causing or permitting waste to occur on, in or about the property,
excepting ordinary wear and tear;
5. failure to maintain, repair or restore the Premises in accordance with
any of the Loan Documents governing, securing or pertaining to the
payment of this Note, to the extent not compensated by insurance
proceeds collected by Holder;
6. loss by fire or casualty to the extent not compensated by insurance
proceeds collected by Holder;
7) the return to Holder of all unearned advance rentals and security
deposits paid by tenants of the Premises and not refunded to or
forfeited by such tenants;
8. the return of, or reimbursement for, all personalty owned by Maker
taken from the Premises by or on behalf of Maker, out of the ordinary
course of business, and not replaced by items of equal or greater value
than the original value of the personalty so removed;
9. all court costs and reasonable attorneys' fees actually incurred which
are provided for in this Note or in a other Loan Documents governing,
securing or pertaining the payment of this Note;
10. (i) the removal of any chemical, materials or substance, exposure to
which is prohibited,limited or regulated by any Federal, State, County,
Regional or Local authority which may or could pose a hazard to the
health and safety of the occupants of the Premises, regardless of the
source of origination; (ii) the restoration of the Premises to comply
with all governmental regulations pertaining to hazardous materials
found in, on or under the Premises regardless of the source of
origination; and (iii) any indemnity or other agreement to. hold Holder
harmless from and against any and all losses, liabilities, damages,
injuries, costs or expenses of any and every kind arising under the
Mortgage or under any Indemnity Agreement executed in connection
herewith. However, Maker shall not be liable for removal of any
hazardous materials if such hazardous materials were placed on the
Premises subsequent to Holder's foreclosure of he mortgage and
acquisition of title to the Premises or subsequent to any transfer by
Maker of ownership of the Premises by means of a transfer approved by
Holder pursuant to the Mortgage and other Loan Documents (provided
that such transferee assumes the obligation to remove such hazardous
materials pursuant to the Loan Documents. The burden of proof under
this Subparagraph wit regard to establishing the date upon which such
hazardous materials were placed or appeared in, on or and r the
Premises shall be upon Maker; and
11. any and all costs incurred in order to cause the Improvements to comply
with any Accessibility Laws (as defined in the Mortgage).
IN WITNESS WHEREOF, Maker has caused this Note to be executed on the day and
year first above written.
ABR PLYMOUTH PLAZA, LTD., a Florida limited partnership
By:
Robert M. Reed, II, its sole general partner
Address of Maker:
695 Broad Avenue South
Naples, FL 33940
EXHIBIT NUMBER 10.60
PLYMOUTH
ENVIRONMENTAL INDEMNITY
THIS ENVIRONMENTAL INDEMNITY is made as of this day of 1997, by ROBERT
M. REED, II, having an address c/o Mi le , Anderson, Sherrod, One Tower
Bridge, West Conshohocken, PA 19428, THOMAS E. BEACH, having an address c/o
Miller, Anderson, Sherrod, One Tower Bridge, West Conshohocken, PA 19428, and
DAVID R. ATKINSON, having an address at 31-D Hulfish Street, Princeton, NJ
08542 (Robert M. Reed, II, Thomas E. Beach and David R. Atkinson are
collectively referred to herein as the "Indemnitors") to TEACHERS INSUkANCE
AND ANNUITY ASSOCIATION OF AMERICA, a New York corporation having an office
at 730 Third Avenue, New York, New York 10017 ("Lender").
Preliminarv Statement
12. ABR PLYMOUTH PLAZA, LTD. is the owner of the real property located in
Orange County, Florida more particularly described in EXHIBIT A
attached hereto (that real property, together with any additional real
property hereafter encumbered by the lien of the Mortgage (defined
below), and all improvements now or hereafter located thereon and all
rights and interests of Borrower therein, being hereinafter
collectively called the "Premises");
13. Lender is about to make a loan in the amount of $10,850,000.00 (the
principal, interest and all other sums due and owing under the loan
being hereinafter collectively called the "Loan"), which Loan shall be
evidenced by a note by Borrower and ABR SPECTRUM, LTD. ("Co"Borrower")
to Lender (together with all modifications, increases, and supplements
thereof, being collectively called the "Note") and secured by, among
other things that certain Mortgage, Assignment of Leases and Rents,
Security Agreement and Fixture Filing Statement made by Borrower and Co
Borrower to Lender (together with all modifications, consolidations,
increases, supplements, and spreaders thereof, being collectively
called the "Mortgage") which will encumber the Premises;
14. As a condition to making the Loan, Lender requires the Indemnitors to
provide-certain indemnities;
15. To induce Lender to make the Loan and in consideration thereof,
Indemnitors have agreed to provide those indemnities;
16. Robert M. Reed, II, Thomas E. Beach and David R. Atkinson are the sole
partners of Borrower and thus will derive substantial benefit from the
Loan.
NOW THEREFORE, in consideration of the matters described hereinabove and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Indemnitors, jointly and severally, agree as
follows:
1. For purposes of this Agreement:
1. "Borrower" is defined in the Preliminary Statement
2. "Environmental Laws" shall mean any and all present and future laws,
statutes, ordinances, rules, regulations, orders, and determinations of
any governmental authority, pertaining to health, hazardous substances,
natural resources, conservation, wildlife, pollution or the
environment, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986,
and as the same be further amended (hereinafter collectively called
"CERCLA").
3. "Environmental Problem" shall mean any of the following:
(a) the presence, suspected presence, or alleged presence of any Hazardous
Substance on, in, under, or above all or any portion of the Premises or
any surrounding areas; or
(b) the release, suspected release, or threatened release, or alleged
release of any Hazardous Substance from or onto the Premises;
(c) the violation, suspected violation, alleged violation, or threatened
violation of any Environmerii.al Law with respect to the Premises;
(d) the failure, suspected failure, alleged failure, or threatened failure
to obtain or to abide by the terms or conditions of any permit or
approval required under any Environmental Law with respect to the
Premises.
A condition described above shall be deemed to be an Environmental Problem
regardless of whether or not any federal, state, or local governmental
authority or agency has taken any action in connection with the condition.
(d) "Environmental Report" shall mean a report prepared by a person or
entity with expertise in identifying and analyzing Environmental
Problems that reports or describes, based on an assessment performed by
or on behalf of that person or entity, Environmental Problems that are
or may be in existence with respect to the Premises.
(e) "Hazardous Substance" shall mean any substance that is defined or
listed as a hazardous, toxic, or dangerous substance under any present
or future Environmental Law or that is otherwise regulated or
prohibited or subject to investigation or remediation under any present
or future Environmental Law because of its hazardous, toxic, or
dangerous properties, including, without limitation, (i) any substance
that is a "hazardous substance" under CERCLA, and (ii) petroleum,
natural gas, natural gas liquids, liquefied natural gas, and synthetic
gas usable for fuel (or mixtures of natural gas and such synthetic
gas).,.
(f) "Indemnified Expenses" is defined in Paragraphs 2A and B below.
(g) "Loan" is defined in the Preliminary Statement hereof.
(h) "Loan Documents" shall mean the documents pertaining to the Loan,
including, without limitation, the Note, the Mortgage, and all other
instruments and documents evidencing or securing the Loan.
(a) "Mortgage" is defined in the Preliminary Statement hereof.
(x) "Note" is defined in the Preliminary Statement hereof.
(xi) "Premises" is defined in the Preliminary Statement hereof.
(b) A. Indemnitors shall, at their sole cost and expense, indemnify,
defend (with counsel approved by Lender), protect, and hold harmless
Lender and Lender's officers, trustees, directors, shareholders,
employees, and agents against and from any and all damages, losses,
liabilities, obligations, penalties, claims, sums -paid -in -settlement
-of ,claims, litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements, fines, encumbrances, liens and
expenses of any kind or of any nature whatsoever (collectively, the
"Indemnified Expenses") that may at any time (including, without
limitation, after the repayment of the Loan or after foreclosure of the
Mortgage, exercise of power of sale under the Mortgage, or conveyance
of the Premises in lieu of foreclosure) be imposed upon, incurred by, or
asserted or awarded against, Lender or any such officers, trustees,
directors, shareholders, employees, or agents and that arise directly
or indirectly from or out of any Environmental Problem, regardless of
whether that Environmental Problem arises before or after the date
hereof or before or after any repayment of the Loan or any conveyance
of the Premises by foreclosure of the Mortgage, exercise of power of
sale under the Mortgage, or conveyance in lieu of foreclosure,
regardless of whether or not that Environmental Problem is the fault of
Borrower, Indemnitors, or any other person or entity, and regardless of
whether or not the Environmental Problem was disclosed in any
Environmental Report performed for, or on behalf of, Lender in
connection with the Loan or whether or not Lender has actual
constructive knowledge of the Environmental Problem from any other
source.
(b) Indemnified Expenses shall .,include, without limitation, all of 'the
following: (i) costs incurred in the removal of Hazardous Substances,
costs incurred in investigation, monitoring, clean-up, and containment
of Hazardous Substances, costs incurred to mitigate damages, closure
costs and costs incurred for remediation and restoration and other
response costs; (ii) costs incurred to cure any violations of
Environmental Laws; (iii) damages for personal injury or death,
property loss, or other loss; (iv) civil and criminal fines and
penalties; (v) costs incurred to remove any liens imposed by law in
favor of the federal or any state or local government or governmental
agency or authority in connection with an Environmental Problem; (vi)
reasonable attorneys', accountants', 'consultants', and experts' fees
and disbursements, administrative costs, and other reasonable
out-of-pocket expenses (including any such fees, disbursements, costs
and expenses incurred as a result of groundless, false or fraudulent
claims or proceedings); (vii) diminution in the market value of the
Premises; (viii) damages for injury to, destruction of, or loss of,
natural resources; (ix) sums paid to tenants and other third parties
(or offset against rents or other sums payable by such tenants and
other third parties) for indemnification pursuant to leases or other
agreements wherein such tenants or other third parties are entitled to
indemnification or payment on account of Environmental Problems or
pursuant to statutory or common law; (x) consequential damages; (xi)
sums paid and any other liability to the federal government, any state
or local government, any federal, state, or local governmental
authority, or any other person or entity for any costs described
above;,(xii) sums paid in satisfaction of judgments; (xiii) settlement
costs; and (xiv) all other costs and expenses of any kind or nature.
(c) Without limiting Indemnitors obligations hereunder, in the event of any
Environmental Problem, Lender may, in Lender's sole discretion: (i) by
notice to Indemnitors, obligate Indemnitors to take appropriate action
to correct or ameliorate the Environmental Problem, in which event
Indemnitors shall take such action at Indemnitors' sole expense; (ii)
itself take appropriate action to correct or ameliorate the
Environmental Problem, to the extent permitted under the Loan Documents
and under the law, in which event Indemnitors shall cooperate with
Lender and shall indemnify Lender for the costs incurred in taking such
action in accordance with this Indemnity; and/or (iii) exercise any
other rights or remedies that Lender may have; but Lender shall have no
obligation to do any of the foregoing.
(d) Lender shall have the options described above whether or not action to
correct or ameliorate the Environmental Problem is ordered by any
Court, governmental authority, or other person or entity. If the
Premises are conveyed by foreclosure of the Mortgage, exercise of power
of the sale under the Mortgage, or conveyance in lieu of foreclosure,
then the indemnity provided for under this instrument shall not apply
to any Environmental Problem that arises solely after and not on or
before the date of the conveyance unless the Environmental Problem
results in whole or in part from acts or omissions by Indemnitors or
Borrower or from acts or omissions prior to the date of the conveyance
by any other person or entity. The indemnity provided for under this
instrument shall, however, apply to Indemnified Expenses incurred after
the date of the conveyance that arise from any Environmental Problem in
existence on or before the date of the conveyance or any Environmental
Problem otherwise not excluded from coverage under the immediately
preceding sentence, even if that Environmental Problem is not
discovered until after the date of the conveyance. For purposes of this
subsection D, a condition in existence on or before the date of the
conveyance shall be deemed to be an Environmental Problem on or before
that date even if the condition becomes an Environmental Problem as a
result of a change in Environmental- Laws that becomes effective after
that date. Indemnitors shall have the burden of proving that any
Environmental Problem arises after the date of conveyance, and if
Indemnitors are unable to satisfy that burden of proof, then
Indemnitors' obligations hereunder with respect to that Environmental
Problem shall be effective and shall not be diminished or reduced.
(c) The obligations of Indemnitors hereunder are independent of the
obligations of Borrower under the Loan Documents. A separate action or
actions may be brought and prosecuted against Indemnitors hereunder,,.
whether or. not . an. action is brought .against ..Borrower under the
Loan Documents and whether or not Borrower is joined in any action
against Indemnitors.
(d) This Environmental Indemnification is given solely to protect Lender
and not as additional security for, or as a means of repayment of, the
Loan and is entirety independent of the Loan, and shall not be measured
or affected by any amounts at any time owing under the Loan Documents,
the sufficiency or insufficiency of any collateral (including, without
limitation,.the Premises) given to Lender to secure repayment of the
Loan, or the consideration given by Lender or any other party in order
to acquire the Premises or any portion thereof. None of the obligations
of Indemnitors shall be in any way secured by the lien of the Mortgage
or any other Loan Document.
(e) Indemnitors' obligations hereunder shall survive repayment of the Loan
and shall survive any conveyance of the Premises (including, without
limitation, any conveyance by foreclosure of the Mortgage, exercise of
power of sale under the Mortgage, or conveyance of the Premises in lieu
of foreclosure).
(f) This instrument shall bind the successors of Indemnitors and inure to
the benefit of the successors and assigns of Lender (including, without
'limitation, any participants of Lender with respect to the Loan).
(g) The obligations of Indemnitors under this instrument are not limited or
impaired by any provisions in the Loan Documents exculpating Borrower
or Borrower's partners from personal liability
thereunder or limiting Lender's recourse against Borrower or Borrower's
partners.
(h) The obligations of Indemnitors under this instrument are not limited or
impaired by the accuracy or inaccuracy of the representations and
warranties made by Borrower under the Loan Documents.
(i) Lender shall at all times be free to inspect the Premises and to
perform such other investigations and tests as Lender deems necessary
in connection with this Environmental Indemnity, but Lender shall not
be obligated to do so.
(j) Indemnitors' obligations hereunder shall apply to and include claims or
actions brought by or on behalf of employees of Borrower and
Indemnitors, and Indemnitors waive any immunity to which Indemnitors may
otherwise be entitled under any industrial or worker's compensation laws.
(k) If Indemnitors fail to indemnify Lender as provided herein, Lender
shall be subrogated to any rights Indemnitors-may have against third
parties relating to the matters covered by this instrument.
(l) The rights of Lender under this Indemnity shall be in addition to any
other rights and remedies of Lender against Indemnitors under any other
document or instrument now or hereafter executed by Indemnitors, or at
law or in equity (including, without limitation, any right of
reimbursement or contribution pursuant to CERCLA), and shall not in any
way be deemed a waiver of any of such rights.
(m) Indemnitors may settle any action or proceeding covered hereby only
with Lender's prior written consent.
(n) Any defense of Lender by Indemnitors hereunder shall be conducted by
attorneys satisfactory to Lender. If Lender determines that the
interests of Lender and Indemnitors in any action or proceeding
conflict in such a manner and to such an extent as to require,
consistent with applicable standards of professional responsibility,
the retention of separate counsel for Lender and Indemnitors, then
Lender may retain Lender's own counsel at Indemnitor-' expense.
(o) Indemnitors shall pay to Lender, immediately upon demand therefor,
interest (at the rate of thirteen and forty-six hundredths percent
(13.46%) per annum) on any payment due from Indemnitors to Lender
hereunder from the date that such payment is demanded by Lender to and
including the date of payment.
(p) Indemnitors shall pay Lender's attorneys' fees (including attorneys'
fees for trial, appellate, bankruptcy and administrative proceedings,
fees for paralegals and legal assistants and other fees and expenses
charged or incurred by Lender's attorneys) and all other costs and
expenses incurred by Lender in the enforcement of this instrument or
the collection of any sums due under this instrument.
(q) Indemnitors shall, at Lender's request from time to time, provide
Lender with copies of any general liability, environmental impairment
and other insurance policies held by Indemnitors that may cover any of
Indemnitors' obligations hereunder. Without limiting in any manner
Indemnitors' obligations hereunder or Lender's remedies hereunder,
Indemnitors shall, at Lender's request, diligently pursue any claims
under such policies for sums payable to Lender hereunder and, if
permitted under such policies, assign any such claims to the extent of
such sums to Lender.
(r) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT GIVING EFFECT
TO THAT STATE'S PRINCIPLES OF CONFLICTS OF LAW). EACH INDEMNITOR
IRREVOCABLY SUBMITS TO THE NON EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT SITTING IN THE STATE OF NEW YORK OVER ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INSTRUMENT, AND EACH
INDEMNITOR AGREES AND CONSENTS THAT, IN ADDITION TO ANY METHODS OF
SERVICE OR PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF
PROCESS IN ANY SUIT, ACTION OR PROCEEDING IN ANY STATE COURT OR FEDERAL
COURT SITTING IN THAT STATE MAY BE MADE BY CERTIFIED OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO INDEMNITORS AT THE
ADDRESSES INDICATED IN PARAGRAPH 19 HEREOF FOR THE GIVING OF ANY
NOTICE, THE UNDERSIGNED HEREBY WAIVING PERSONAL SERVICE THEREOF.
SERVICE SO MADE SHALL BE COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL
HAVE BEEN SO MAILED.
(s) Any notice, request, demand, consent, approval, or other communication
under this instrument (collectively, "Notice") shall be in writing,
signed by the party giving such Notice and shall be
sent by registered or certified mail, postage prepaid, return receipt
requested, addresses: to the party for whom it is intended at its
address as follows (as that address may be changed as hereinafter
provided):
If to Indemnitors:
Robert M. Reed, II
c/o Miller, Anderson, Sherrod One Tower Bridge
West Conshohocken, PA 19428
Thomas E. Beach
c/o Miller, Anderson, Sherrod One Tower Bridge
West Conshohocken, PA 19428
David R. Atkinson
31-D Hulfish Street
Princeton, NJ 08542
with courtesy copy to:
Leo L. Salvatori, Esq.
Quarles & Brady
Barnett Center, Suite 300
4501 Tamiami Trail North
Naples, Florida 33940
If to Lender:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017
Attn: Managing.Director Mortgage and Real Estate Division
M-0004273
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017
Attn: Vice President and Chief Counsel Mortgage and Real Estate Law
M-0004273
Notice shall be deemed given on the third day after the same is deposited in
an official United States post office. Any party may from time to time, by
Notice to the other party given as above set forth, change its address for
purposes of receipt of any such Notice.
(t) Each Indemnitor represents to Lender that such Indemnitor is unaware of
any Environmental Problem. Indemnitors shall promptly notify Lender in
writing of any Environmental Problem of which Indemnitors become aware.
(u) If there is more than one Indemnitor: (i) the obligations of each
Indemnitor are joint and several; (ii) a release of any one or more
Indemnitor or any limitation of this Agreement in favor of or for the
benefit of one or more Indemnitors shall not in any way-be deemed a
release of or limitation in favor of or for the benefit of any other
Indemnitor; (iii) the unenforceability for any reason of this
instrument against one or more Indemnitors shall not affect or impair
the obligations hereunder of any remaining Indemnitors; and (iv) a
separate action hereunder may be brought and prosecuted against one or
more Indemnitors. An Indemnitor shall have no right of contribution
(including, without limitation, any right of contribution under CERCLA)
or subrogation against any other Indemnitor hereunder unless and until
all obligations of such Indemnitor have been satisfied. To the extent
that any waiver of an Indemnitor's rights of subrogation and
contribution as set forth herein is found by a court of competent
jurisdiction to be void or voidable for any reason, then those rights
of subrogation or contribution shall in any event be junior and
subordinate to the rights of Lender against any Indemnitor hereunder.
(v) Indemnitors authorize Lender without notice or demand and without
affecting Indemnitors' liability hereunder from time to time to: (a)
change any of the terms of the Loan Documents; (b) take and hold
additional security for the payment of the indebtedness evidenced by the
Note and the other amounts payable under the Loan Documents, and
exchange, enforce, waive and release any such security; (c) release
from the lien of the Mortgage all or part of the Premises; (d) apply
the Premises and direct the order of manner of sale thereof as Lender
in its discretion may determine; or (e) release Borrower from
performance or observance of any of the agreements contained in the Loan
Documents. Indemnitors' liability hereunder shall also not be affected
by any such change, release, or application that arises by operation of
law.
(w) Indemnitors waive:
1) Presentment, demand, protest, notice of protest, notice of dishonor and
notice of non-payment, non-performance or non-observance., and notice
of acceptance of this instrument.
2) The right, if any, to the benefit of, or to direct the application of,
any security held by Lender, including the Premises; and, until all of
the indebtedness evidenced by the Note has been paid in full, all
rights of subrogation, any right to enforce any remedy which Lender now
has or hereafter may have against Borrower, and any right to
participate in any security now or hereafter held by Lender;
3) The right to require Lender to proceed against Borrower or to proceed
against any security now or hereafter held by Lender or to pursue any
other remedy in Lender's power;
4) The benefits, if Indemnitors are entitled to any benefits, of any or
all anti-deficiency statutes or single-action legislation;
5) Any defense arising out of the absence, impairment, or loss of any
right of reimbursement or subrogation or other right or remedy of
Indemnitors against Borrower or against any security
resulting from the exercise of election of any remedies by Lender,
including a judicial foreclosure or the exercise of the power of sale
under the Mortgage, and any defense arising by reason of any disability
or other defense of Borrower or by reason of the cessation, from any
cause, of the liability of Borrower;
6) The benefit of or right to assert any statute of limitations affecting
Indemnitors' lability hereunder or the enforcement thereof to the
extent permitted by law;
7) Any homestead exemption rights;
8) Any right to deferral or modification of 'Indemnitors' obligations
hereunder by reason of any bankruptcy, reorganization, arrangement,
moratorium, or other debtor relief proceeding regarding Indemnitors;
(1) Any defense arising out of any bankruptcy, reorganization, arrangement,
moratorium, or other debtor relief proceeding regarding Borrower, the
dissolution of Borrower or the death of any Indemnitor;
(10) Any other rights and remedies afforded by applicable law.
(X) Subject to paragraph 6 hereof, the terms of this Indemnity are for the
sole and exclusive protection and use of Lender. Subject to paragraph 6
hereof, no party shall be a third-party beneficiary hereunder, avid no
provision hereof shall operate or inure to the use and benefit of a
third party.
(Y) Indemnitors expressly hereby waive all rights to a trial by jury in any
action, counterclaim or proceeding based upon, or related to, the
subject matter of this Indemnity. This waiver applies tc all claims
against all parties to such actions and proceedings, including parties
who are not parties to this Indemnity. This - waiver is knowingly,
intentionally, and voluntarily made by Indemnitors and Indemnitors
expressly acknowledge that neither Lender nor any person acting on
behalf of Lender has made any representations of fact to induce this
waiver of trial by jury or in any way to modify or nullify its effect.
Indemnitors further acknowledge that Indemnitors have been represented
(or have had the opportunity to be represented) in the signing of this
Indemnity and in the making of this waiver by independent legal
counsel, selected of Indemnitors' own, free will, and that Indemnitors
have had the opportunity to discuss this waiver with counsel.
Indemnitors further acknowledge that Indemnitors have read and
understand the meaning and ramifications of this Indemnity and,
specifically, this waiver provision.
(Z) (a) Notwithstanding any other provision of this Indemnity to the
contrary, Indemnitors hereby waive any claim or other rights which
Indemnitors may now have or hereafter acquire against Borrower or any
other guarantor of all or any of the Loan that arise from the existence
or performance of Indemnitors' obligations under this Indemnity (all
such claims and rights are referred to as Indemnitors' "Conditional
Rights"), including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, or indemnification, and any
right to participate in any claim or remedy of Lender against Borrower
or any collateral which Lender now has or hereafter acquires, whether
or not such claim, remedy or right arises in equity or under contract,
statute or common law, by any payment made-hereunder or otherwise,
including without limitation, the right to take or receive from
Borrower, directly or indirectly, in cash or other property or by
setoff or in any other manner, payment or security on account of such
claim or other rights. If, notwithstanding the foregoing provisions,
any amount shall be paid to any Indemnitor hereunder on account of any
such Indemnitor's Conditional Rights and either (i) such amount is paid
to such Indemnitor at any time when the Loan shall not have been paid
or performed in full, or (ii) regardless of when such amount is paid to
such Indemnitor, any payment made by Borrower to Lender is at any time
determined to be a Preferential Payment (as hereinafter defined), then
such amount paid to such Indemnitor shall be held in trust for the
benefit of Lender and shall forthwith be paid to Lender to be credited
and applied upon the Loan, whether matured or unmatured, in such order
as Lender, in its sole and absolute discretion, shall determine. As
used herein, the term "Preferential Payment" shall mean any payment all
or any part of which is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid by
Lender or paid over to a trustee, receiver or any other entity, whether
pursuant to any bankruptcy act or otherwise
(B) To the extent that any of the provisions of subparagraph (a) of this
Section shall not be enforceable, each Indemnitor agrees that until
such time as the'Loan has been paid and performed in full and the
period of time has expired during which any payment made by Borrower or
such Indemnitor to Lender may be determined to be a Preferential
Payment, (i) such Indemnitor's Conditional Rights shall be subordinate
to Lender's right to full payment and performance of the Loan, and (ii)
such Indemnitor shall not enforce such Indemnitor's Conditional Rights.
(AA) Any indebtedness of Borrower now or hereafter owed to or held by any
Indemnitor is hereby subordinated to the indebtedness of Borrower to
Lender; and such indebtedness of Borrower to any Indemnitor shall if
Lender so requests; be collected, enforced and received by such
Indemnitor as trustee for Lender and be paid over to Lender on account
of the indebtedness of Borrower to Lender, but without reducing or
affecting in any manner the liability of such Indemnitor under the
other provisions of this Indemnity.
(BB) If Borrower pays any sum otherwise payable by Indemnitors hereunder and
if such sum must be repaid to Borrower pursuant to any bankruptcy or
insolvency law, then Indemnitors' obligation to pay such sum hereunder
shall not be diminished and shall continue in full force and effect.
(CC) Lender shall have no duty to disclose or report to any Indemnitor any
information now or hereafter known to Lender regarding the Premises or
the Borrower including, without .limitation, information regarding
any Environmental Problem or circumstances that could result in an
Environmental Problem.
(DD) Any married person who signs this instrument expressly agrees that
recourse may be had against his or her separate property for all of his
or her obligations or liabilities under this instrument.
(EE) If any term of this Indemnity or any application of any such term shall
be invalid, illegal, or unenforceable, the remainder of this indemnity
and any other application of such term shall remain effective.
(FF) No delay in exercising any right or power hereunder shall operate as a
waiver, and no waiver of any right or power or consent by Lender shall
be valid unless in writing. The failure of Lender to insist upon strict
compliance with any of the terms of this Indemnity shall not be
considered to be a waiver of any such terms, nor shall it prevent
Lender from insisting upon strict compliance with this Indemnity at any
time hereafter
(GG) No provision of this Indemnity may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge, or
termination is sought.
IN WITNESS WHEREOF, Indemnitors have caused this instrument to be executed as
of the date first written above.
THOMAS E. BEACH
(EE) If any term of this Indemnity or any application of any such term shall
be invalid, illegal, or unenforceable, the remainder of this indemnity
and any other application of such term shall remain effective.
(FF) No delay in exercising any right or power hereunder shall operate as a
waiver, and no waiver of any right or power or consent by Lender shall
be valid unless in writing. The failure of Lender
to insist upon strict compliance with any of the terms of this
Indemnity shall not be considered to be a waiver of any such terms, nor
shall it prevent Lender from insisting upon strict compliance with this
Indemnity at any time hereafter
(GG) No provision of this Indemnity may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge, or
termination is sought.
IN WITNESS WHEREOF, Indemnitors have caused this instrument to be executed as
of the date first written above.
Indemnitors:
ROBERT M. REED, II
DAVID R. ATKINSON
31. If any term of this Indemnity or any application of any such term shall
be invalid, illegal, or unenforceable, the remainder of this indemnity
and any other application of such term shall remain effective.
32. No delay in exercising any right or power hereunder shall operate as a
waiver, and no waiver of any right or power or consent by Lender shall
be valid unless in writing. The failure of Lender to insist upon strict
compliance with any of the terms of this Indemnity shall not be
considered to be a waiver of any such terms, nor shall it prevent
Lender from insisting upon strict compliance with this Indemnity at any
time hereafter
33. No provision of this Indemnity may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge, or
termination is sought.
IN WITNESS WHEREOF, Indemnitors have caused this instrument to be executed as
of the date first written above.
Indemnitors
ROBERT M. REED, II
Exhibit A
Description of Property
DESCRIPTION.: PLYMOUTH PLAZA
A PARCEL OF LAND LYING WITHIN SECTION 30, TOWNSHIP 28 SOUTH. RANGE 16.
EAST PINELLAS COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT CENTER OF SAID SECTION 30; THENCE S.0012'15"E., ALONG THE
CENTERLINE OF U.S. HIGHWAY 19, A DISTANCE OF 50.00 FEET; THENCE N.8955'13"W.,
A DISTANCE OF 100.00 FEET; THENCE S.0012'15"E., A DISTANCE OF 150.94 FEET TO
THE BEGINNING OF A CURVE, HAVING A RADIUS OF 2964.93 FEET AND A CENTRAL ANGEL
OF 2150'27"; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE TO THE LEFT, A
DISTANCE OF 1130.21 FEET, SAID ARC SUBTENDED BY A CHORD WHICH BEARS
S.1101'28"E., A DISTANCE OF 1123.38 FEET; THENCE S.6737'20"W., A DISTANCE OF
26.56 FEET TO THE BEGINNING OF A CURVE, HAVING A RADIUS OF 187.16 FEET AND A
CENTRAL ANGLE OF 0513'00"; THENCE WESTERLY ALONG THE ARC OF SAID CURVE TO THE
LEFT, A DISTANCE OF 17.04 FEET, SAID ARC SUBTENDED BY A CHORD WHICH BEARS
S.6500'50"W., A DISTANCE OF 17.03 FEET FOR A POINT OF BEGINNING ON THE
EXISTING WESTERLY RIGHT OF WAY LINE OF SAID U.S. HIGHWAY 19; SAID POINT BEING
THE POINT OF INTERSECTION WITH A CURVE, HAVING A RADIUS OF 3285.22 FEET AND A
CENTRAL ANGLE OF 0440'20"; THENCE SOUTHEASTERLY ALONG SAID WESTERLY RIGHT OF
WAY LINE ALONG THE ARC OF SAID CURVE TO THE LEFT, A DISTANCE OF 267.90 FEET,
SAID ARC SUBTENDED BY A CHORD WHICH BEARS S.2456'19"E., A DISTANCE OF 267.82
FEET; THENCE S.5351'32"W., A DISTANCE OF50.47 FEET; THENCE N.3608'28"W.,
FEET; THENCE S.5351'32"W., A DISTANCE OF 229.00 FEET; THENCE N.3608'28"W., A
DISTANCE OF 18.50 FEET; THENCE S.5351'32"W., A DISTANCE OF 201.65 FEET;
THENCE N.3608'28"W., A DISTANCE OF 160.00 FEET; THENCE S.5351'32"W., A
DISTANCE OF 210.82 FEET TO THE EASTERLY RIGHT OF WAY LINE OF ENTERPRISE ROAD;
THENCE ALONG SAID EASTERLY RIGHT OF WAY THE FOLLOWING THREE (3) COURSES: (1)
N.5519'05"W., A DISTANCE OF 307.28 FEET; TO THE BEGINNING OF A CURVE, HAVING
A RADIUS OF 270.00 FEET AND A CENTRAL ANGEL OF 4519'50"; (2) NORTHWESTERLY
ALONG THE ARC OF SAID CURVE TO THE RIGHT, A DISTANCE OF 213.62 FEET, SAID ARC
SUBTENDED BY A CHORD WHICH BEARS N.3239'10"W., A DISTANCE OF 208.09 FEET TO A
POINT OF COMPOUND CURVATURE WITH A CURVE, HAVING A RADIUS OF 835.00 FEET AND A
CENTRAL ANGLE OF 0024'40"; (3) NORTHERLY ALONG THE ARC OF SAID CURVE TO THE
RIGHT, A DISTANCE OF 5.99 FEET, SAID ARC SUBTENDED BY A CHORD WHICH BEARS
N.0946'55"W., A DISTANCE OF 5.99 FEET TO A POINT ON THE SOUTH LINE OF THE
PLAT OF DUNEDIN INDUSTRIAL PARK, AS RECORDED IN PLAT BOOK 64, PAGE 76, PUBLIC
RECORDS OF PINELLAS COUNTY FLORIDA; THENCE ALONG THE SOUTHERLY AND EASTERLY
LINES OF SAID PLAT THE FOLLOWING TWO (2) COURSES: (1) S.8955'13"E., AT
DISTANCE OF 6.87 FEET; (2) N.0004'47"W., A DISTANCE OF 135.00 FEET; THENCE
S.8955'13"E., A DISTANCE OF 568.72 FEET; THENCE N.0004'47"E., A DISTANCE OF
10.00 FEET; THENCE S.3656'12"E., A DISTANCE OF 70.43 FEET TO A POINT OF
INTERSECTION WITH A CURVE, HAVING A RADIUS OF 47.75 FEET AND A CENTRAL ANGLE
OF 3812'45"; THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT, A
DISTANCE OF 31.85 FEET, SAID ARC SUBTENDED BY A CHORD WHICH BEARS
N.7738'34"E., A DISTANCE OF 31.26 FEET; THENCE N.5832'12"E., A DISTANCE OF
121.19 FEET TO THE BEGINNING OF A CURVE, HAVING A RADIUS OF 187.16 FEET AND A
CENTRAL ANGLE OF 0352'08"; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE
TO THE RIGHT, A DISTANCE OF 12.64 FEET, SAID ARC SUBTENDED BY A CHORD WHICH
BEARS N.6028'16"E., A DISTANCE OF 12.64 FEET TO THE POINT OF BEGINNING;
CONTAINING 7.239 ACRES, MORE OR LESS.
EXHIBIT NUMBER 10.61
SPECTRUM
ENVIRONMENTAL INDEMNITY
THIS ENVIRONMENTAL INDEMNITY is made as of this 1st day of July, 1997, by
ROBERT M. REED, II, having an address c/o Miller Anderson, Sherrod, One Tower
Bridge, West Conshohocken, PA 19428, THOMAS E. BEACH, having an address c/o
Miller, Anderson, Sherrod, One Tower Bridge, West Conshohocken, PA 19428, and
DAVID R. ATKINSON, having an address at 31-D Hulfish Street, Princeton, New
Jersey 08542 (Robert M. Reed, II, Thomas E. Beach and David R. Atkinson are
collectively referred to herein as the "Indemnitors") to TEACHERS INSURANCE
AND ANNUITY ASSOCIATION OF AMERICA, a New York corporation having an office
at 730 Third Avenue, New York, New York 30017 ("Lender").
Preliminarv Statement
34. ABR SPECTRUM, LTD. is the owner of the real property located in Orange
County, Florida more particularly described in EXHIBIT A attached
hereto (that real property, together with any additional real property
hereafter encumbered by the lien of the Mortgage (defined below), and
all improvements now or hereafter located thereon and all rights and
interests of Borrower therein, being hereinafter collectively called
the "Premises");
35. Lender is about to make a loan in the amount of $10,850,000.00 (the
principal, interest and all other sums due and owing under the loan
being hereinafter collectively called the "Loan"), which Loan shall be
evidenced by a note by Borrower and ABR PLYMOUTH PLAZA, LTD.
("Co"Borrower") to Lender (together with all modifications, increases,
and supplements thereof, being collectively called the "Note") and
secured by, among other things that certain Mortgage, Assignment of
Leases and Rents, Security Agreement and Fixture Filing Statement made
by Borrower and Co Borrower to Lender (together with all modifications,
consolidations, increases, supplements, and spreaders thereof, being
collectively called the "Mortgage") which will encumber the Premises;
36. As a condition to making the Loan, Lender requires the Indemnitors to
provide certain indemnities;
37. To induce Lender to make the Loan and in consideration thereof,
Indemnitors have agreed to provide those indemnities;
38. Robert M. Reed, II, Thomas E. Beach and David R. Atkinson are the sole
partners of Borrower and thus will derive substantial benefit from the
Loan.
NOW THEREFORE, in consideration of the matters described hereinabove and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Indemnitors, jointly and severally, agree as
follows:
1. For purposes of this Agreement:
1. "Borrower" is defined in the Preliminary Statement
2. "Environmental Laws" shall mean any and all present and future laws,
statutes, ordinances, rules, regulations, orders, and determinations of
any governmental authority, pertaining to health, hazardous substances,
natural resources, conservation, wildlife, pollution or the environment,
including, without limitation, the Comprehensive Environmental Response.
Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, and as the same be further
amended (hereinafter collectively called "CERCLA").
3. "Environmental Problem" shall mean any of the following:
(a) the presence, suspected presence, or alleged presence of any Hazardous
Substance on, in, under, or above all or any portion of the Premises or
any surrounding areas; or
(b) the release; suspected release, or threatened release, or alleged
release of any Hazardous Substance from or onto the Premises;
(c) the violation, suspected violation, alleged violation, or threatened
violation of any Environmental Law with respect to the Premises;
(d) the failure, suspected failure, alleged failure, or threatened failure
to obtain or to abide by the terms or conditions of any permit or
approval required under any Environmental Law with respect to the
Premises.
A condition described above shall be deemed to be an Environmental Problem
regardless of whether or not any federal, state, or local governmental
authority or agency has taken any action in-connection,with the condition.
(d) "Environmental Report" shall mean a report prepared by a person or
entity with expertise in identifying and analyzing Environmental
Problems that reports or describes, based on an assessment performed by
or on behalf of that person or entity, Environmental Problems that are
or may be in existence with respect to the Premises.
(e) "Hazardous Substance" shall mean any substance that is defined or
listed as a hazardous, toxic, or dangerous substance under any present
or future Environmental Law or that is otherwise regulated or
prohibited or subject too investigation or remediation under any
present or future Environmental Law because of its hazardous, toxic, or
dangerous properties, including, without limitation, (i) any substance
that is a "hazardous substance" under CERCLA, and (ii) petroleum,
natural gas, natural gas liquids, liquefied natural gas, and synthetic
gas usable for fuel (or mixtures of natural gas and such synthetic
gas).
(f) "Indemnified Expenses" is defined in Paragraphs 2A. and B. below.
(g) "Loan" is defined in the Preliminary Statement hereof.
(h) "Loan Documents" shall mean the documents pertaining to the Loan,
including, without limitation, the Note, the Mortgage, and all other
instruments and documents evidencing or securing the Loan.
(a) "Mortgage" is defined in the Preliminary Statement hereof.
(x) "Note" is defined in the Preliminary Statement hereof.
(xi) "Premises" is defined in the Preliminary Statement hereof.
(b) A. Indemnitors shall, at their sole cost and expense, indemnify,
defend (with counsel approved by Lender), protect, and hold harmless
Lender and Lender's officers, trustees, directors, shareholders,
employees, and agents against and from any and all damages, losses,
liabilities, obligations, penalties, claims, sums paid in settlement of
claims, litigation, demands, defenses, judgments, suits, proceedings,
costs, disbursements, fines, encumbrances, liens and expenses of any
kind or of any nature whatsoever (collectively, the "Indemnified
Expenses") that may at any time (including, without limitation, after
the repayment of the Loan or after foreclosure of the Mortgage, exercise
of power of sale under the Mortgage, or conveyance of the Premises in
lieu of foreclosure) be imposed upon, incurred by, or asserted or
awarded against, Lender or any such officers, trustees, directors,
shareholders, employees, or agents and that arise directly or
indirectly from or out of any Environmental Problem, regardless of
whether that Environmental Problem arises before or after the date
hereof or before or after any repayment of the Loan or any conveyance
of the Premises by foreclosure of the Mortgage, exercise of power of
sale under the Mortgage, or conveyance in lieu of foreclosure,
regardless of whether or not that Environmental Problem is the fault of
Borrower, Indemnitors, or any other person or entity, and regardless of
whether or not the Environmental Problem was disclosed in any
Environmental Report performed for, or on behalf of, Lender in
connection with the Loan or whether or not Lender has actual
constructive knowledge of the Environmental Problem from any other
source.
(b) Indemnified Expenses shall include, without limitation, all of the
following: (i) costs incurred in the removal of Hazardous Substances,
costs incurred in investigation, monitoring, clean-up, and containment
'of Hazardous Substances, costs incurred to mitigate damages, closure
costs and costs incurred for remediation and restoration and other
response costs; (ii) costs incurred to cure any violations of
Environmental Laws; (iii) damages for personal injury or death,
property loss, or other loss; (iv) civil and criminal fines and
penalties; (v) costs incurred to remove any liens imposed by law in
favor of the federal or any state or local government or governmental
agency or authority in connection with an Environmental Problem; (vi)
reasonable attorneys', accountants', consultants', and experts' fees
and disbursements, administrative costs, and other reasonable
out-of-pocket expenses (including any such fees, disbursements, costs
and expenses incurred as a result of groundless, false or fraudulent
claims or proceedings); (vii) diminution in the market value of the
Premises; (viii) damages for injury to, destruction of, or loss of,
natural resources; (ix) sums paid to tenants and other third parties
(or offset against rents or other sums payable by such tenants and
other third parties) for indemnification pursuant to leases or other
agreements wherein such tenants or other third parties are entitled to
indemnification or payment on account of Environmental Problems or
pursuant to statutory or common law; (x) consequential damages; (xi)
sums paid and any other liability to the federal government, any state
or local government, any federal, state, or local governmental
authority, or any other person or entity for any costs described above;
(xii) sums paid in satisfaction of judgments; (xiii) settlement costs;
and (xiv) all other costs and expenses of any kind or nature.
(c) Without limiting. Indemnitors obligations hereunder, in the event of
any Environmental Problem, Lender may, in Lender's sole discretion: (i)
by notice to Indemnitors, obligate Indemnitors to take appropriate
action to correct or ameliorate the Environmental Problem, in which
event Indemnitors shall take such action at Indemnitors' sole expense;
(ii) itself take appropriate action to correct or ameliorate the
Environmental Problem, to the extent permitted under the Loan Documents
and under the law, in which event Indemnitors shall cooperate with
Lender and shall indemnify Lender for the costs incurred in taking such
action in accordance with this Indemnity; and/or (iii) exercise any
other rights or remedies that Lender may have; but Lender shall have no
obligation to do any of the foregoing.
(d) Lender shall have the options described above whether or not action to
correct or ameliorate the Environmental Problem is ordered by any
Court, governmental authority, or other person or entity. If the
Premises are conveyed by foreclosure of the Mortgage, exercise of power
of the sale under the Mortgage, or conveyance in lieu of foreclosure,
then the indemnity provided for under this instrument shall not apply
to any Environmental Problem that arises solely after and not on or
before the date of the conveyance unless the Environmental Problem
results in whole or in part from acts or omissions by Indemnitors or
Borrower or from acts or omissions prior -to the date of the conveyance
by any other person or entity. The indemnity provided for under this
instrument shall, however, apply to Indemnified Expenses incurred after
the date of the conveyance that arise from any Environmental Problem in
existence on or before the date of the conveyance or any Environmental
Problem otherwise not: excluded from coverage under the immediately
preceding sentence, even if that Environmental Problem is not
discovered until after the date of the conveyance. For purposes of this
subsection D, a condition in existence on or before the date of the
conveyance shall be deemed to be an Environmental Problem on or before
that date even if the condition becomes an Environmental Problem as a
result of a change in Environmental Laws that becomes effective after
that date. Indemnitors shall have the burden of proving that any
Environmental Problem arises after the date of conveyance, and if
Indemnitors are unable to satisfy that burden of proof, then
Indemnitors, obligations hereunder with respect to that Environmental
Problem shall be effective and shall not be diminished or reduced.
(c) The obligations of Indemnitors hereunder are independent of the
obligations of Borrower under the Loan Documents. A separate action or
actions may be brought and prosecuted against Indemnitors hereunder,
whether or not an action is brought against Borrower under the Loan
Documents and whether or not Borrower is joined in any action against
Indemnitors.
(d) This Environmental Indemnification Is -given -solely -to protect Lender
and not as additional. security for, or as a means of repayment of, the
Loan and is entirely independent of the Loan, and shall not be measured
or affected by any amounts at any time owing under the Loan Documents,
the sufficiency or insufficiency of any collateral (including, without
limitation, the Premises) given to Lender to secure repayment of the
Loan, or the consideration given by Lender or any other party in order to
acquire the Premises or any portion thereof. None of the obligations of
Indemnitors shall be in any way secured by the lien of the Mortgage or
any other Loan Document.
(e) Indemnitors' obligations hereunder shall survive repayment of the Loan
and shall survive any conveyance of the Premises (including, without
limitation, any conveyance by foreclosure of the Mortgage, exercise of
power of sale under the Mortgage, or conveyance of the Premises in lieu
of foreclosure).
(f) This instrument shall bind the successors of Indemnitors and inure to
the benefit of the successors and assigns of Lender (including, without
limitation, any participants of Lender with respect to the Loan).
(g) The obligations of Indemnitors under this instrument are not limited or
impaired by any provisions in the Loan Documents exculpating Borrower
or Borrower's partners from personal liability thereunder or limiting
Lender's recourse against Borrower or Borrower's partners.
(h) The obligations of Indemnitors under this instrument are not limited or
impaired by the accuracy or inaccuracy of the representations and
warranties made by Borrower under the Loan Documents.
(i) Lender shall at all times be free to inspect the Premises and to
perform such other investigations and tests as Lender deems necessary
in connection with this Environmental Indemnity, but Lender shall not
be obligated to do so.
(j) Indemnitors' obligations hereunder shall apply to and include claims or
actions brought by or on behalf of employees of Borrower and
Indemnitors, and Indemnitors waive any immunity to which Indemnitors
may otherwise be entitled under any industrial or worker's compensation
laws.
(k) If Indemnitors fail to indemnify Lender as provided herein, Lender
shall be subrogated to any rights Indemnitors may have against third
parties relating to the matters covered by this instrument.
(l) The -rights -of -Lender under this Indemnity shall be in addition to any
other rights and remedies of Lender against Indemnitors under any other
document or instrument now or hereafter executed by Indemnitors, or at
law or in equity (including, without limitation, any right of
reimbursement or contribution pursuant to CERCLA) , and shall not in
any way be deemed a waiver of any of such rights.
(m) Indemnitors may settle any action or proceeding covered hereby only
with Lender's prior written consent.
(n) Any defense of Lender by Indemnitors hereunder shall be conducted by
attorneys satisfactory to Lender. If Lender determines that the
interests of Lender and Indemnitors in any action or proceeding conflict in
such a manner and to such an extent as to require, consistent with
applicable standards of professional responsibility, the retention
separate counsel for Lender and Indemnitors, then Lender may retain
Lender's own counsel at Indemnitors' expense.
(o) Indemnitors shall pay to Lender, immediately upon demand therefor,
interest (at the rate of thirteen and forty-six hundredths percent
(13.46%) per annum) on any payment due from Indemnitors to Lender
hereunder from the date that such 1,ayment is demanded by Lender to and
including the date of payment.
(p) Indemnitors shall pay Lender's attorneys' fees (including attorneys'
fees for trial, appellate, bankruptcy and administrative proceedings,
fees for paralegals and legal assistants and other fees and expenses
charged or incurred by Lender's attorneys) and all other costs and
expenses incurred by Lender in the enforcement of this instrument or
the collection of any sums due under this instrument.
(q) Indemnitors shall, at Lender's request from time to time, provide
Lender with copies of any general liability, environmental impairment
and other insurance policies held by Indemnitors that may cover any of
Indemnitors' obligations hereunder. Without limiting in any manner
Indemnitors' obligations hereunder or Lender's remedies hereunder,
Indemnitors shall, at Lender's request, diligently pursue any claims
under such policies for sums payable to Lender hereunder and, if
permitted under such policies, assign any such claims to the extent. of
such sums to Lender.
(r) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA (WITHOUT GIVING
EFFECT TO THAT STATE'S PRINCIPLES OF CONFLICTS OF LAW). EACH INDEMNITOR
IRREVOCABLY SUBMITS TO THE NON EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT SITTING IN THE STATE OF NEW YORK OVER ANY SUIT, ACTION OR
PROCEEDING ARISING OUT -OF-OR-RELATING TO THIS INSTRUMENT, AND EACH
INDEMNITOR AGREES AND CONSENTS THAT, IN ADDITION TO ANY METHODS OF
SERVICE OR PROCESS PROVIDED FOR UNDER APPLICABLE LAW. ALL SERVICE OF
PROCESS IN ANY SUIT, ACTION OR PROCEEDING IN ANY STATE COURT OR FEDERAL
COURT SITTING IN THAT STATE MAY BE MADE BY CERTIFIED OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO INDEMNITORS AT THE
ADDRESSES INDICATED IN PARAGRAPH 19 HEREOF FOR THE GIVING OF ANY
NOTICE, THE UNDERSIGNED HEREBY WAIVING PERSONAL SERVICE THEREOF. SERVICE SO
MADE SHALL BE COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO
MAILED.
(s) Any notice, request, demand, consent, approval, or other communication
under this instrument (collectively, "Notice") shall be in
writing,.signed by the party giving such Notice and shall be sent by
registered or certified mail, postage prepaid, return receipt
requested, addressed to the party for whom it is intended at its
address as follows (as that address may be changed as hereinafter
provided):
If to Indemnitors:
Robert M. Reed, II
c/o Miller, Anderson, Sherrod One Tower Bridge
West Conshohocken, PA 19428
Thomas E. Beach
c/o Miller, Anderson, Sherrod One Tower Bridge
West Conshohocken, PA 19428
David R. Atkinson
31-D Hulfish Street
Princeton, NJ 08542
with courtesy copy to:
Leo L. Salvatori ,Esq.
Quarles & Brady
Barnett Center, Suite 300
4501 Tamiami Trail North
Naples, Florida 33940
If to Lender:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017
Attn: Managing Director Mortgage and Real Estate Division
M-0004273
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017
Attn: Vice President and Chief Counsel Mortgage and Real Estate Law
M-0004273
Notice shall be deemed given on the third day after the same is deposited in
an official United States post office. Any party may from time to time, by
Notice to the other party given as above set forth, change its address for
purposes of receipt of any such Notice.
(t) Each Indemnitor represents to Lender that such Indemnitor is unaware of
any Environmental Problem. Indemnitors shall promptly notify Lender in
writing of any Environmental Problem of which Indemnitors become aware.
(u) If there is more than one Indemnitor: (i) the obligations of each
Indemnitor are joint, and several; (ii) a release of any one or more
Indemnitor or any limitation of this Agreement in favor of or for the
benefit of one or more Indemnitors shall not in any way be deemed a
release of or limitation in favor of or for the benefit of any other
Indemnitor; (iii) the unenforceability for any reason of this
instrument against one or more Indemnitors shall not affect or impair
the obligations hereunder of any remaining Indemnitors; and (iv) a
separate action hereunder may be brought and prosecuted against one or
more Indemnitors. An Indemnitor shall have no right of contribution
(including, without limitation, any right of contribution under CERCLA)
or subrogation against any other Indemnitor hereunder unless and until
all obligations of such Indemnitor have been satisfied. To the extent
that any waiver of an Indemnitor's rights of subrogation and
contribution as set forth herein is found by a court of competent
jurisdiction to be void or voidable for any reason, then those rights
of subrogation or contribution shall in any event be junior and
subordinate to the rights of Lender against any Indemnitor hereunder.
(v) Indemnitors authorize Lender without notice or demand and without
affecting Indemnitors' liability hereunder from time to time to: (a)
change any of the terms of the Loan Documents; (b) take and hold
additional security for the payment of the indebtedness evidenced by
the Note and the other amounts payable under the Loan Documents, and
exchange, enforce, waive and release any such security; (c) release
from the lien of the Mortgage all or part of the Premises; (d) apply
the Premises and direct the order of manner of sale thereof as Lender
in its discretion may determine; or (e) release Borrower from
performance or observance of any of the agreements contained in the
Loan Documents. Indemnitors' ability hereunder shall also not be
affected by any such change, release, or application that arises by
operation of law.
(w) Indemnitors waive
1) Presentment, demand, protest, notice of protest, notice of dishonor and
notice of non-payment, non-performance or non-observance, and notice of
acceptance of this instrument.
2) The right, if any, to the benefit of, or to direct the application of,
any security held by Lender, including the Premises; and, until all of
the indebtedness evidenced by the Note has been paid in full, all rights
of subrogation, any right to enforce any remedy which Lender now has or
hereafter may have against Borrower, and any right to participate in
any security now or hereafter held by Lender;
3) The right to require Lender to proceed against Borrower or to proceed
against any security now or hereafter held by Lender or to pursue any
other remedy in Lender's power;
4) The benefits, if Indemnitors are entitled to any benefits, of any or
all anti-deficiency statutes or single-action legislation;
5) Any defense arising out of the absence, impairment, or loss of any
right of reimbursement or subrogation or other right or remedy of
Indemnitors against Borrower or against any security resulting from the
exercise of election of any remedies by Lender, including a judicial
foreclosure or the exercise of the power of sale under the Mortgage,
and any defense arising by reason of any disability or other defense of
Borrower or by reason of the cessation, from any cause, of the
liability of Borrower;
6) The benefit of or right to assert any statute of limitations affecting
Indemnitors lability hereunder or the enforcement thereof to the extent
permitted by law;
7) Any homestead exemption rights;
8) Any right to deferral or modification of Indemnitors' obligations
hereunder by reason of any bankruptcy, reorganization, arrangement,
moratorium, or other debtor relief proceeding regarding Indemnitors;
(1) Any defense arising out of any bankruptcy, reorganization, arrangement,
-moratorium, -or other debtor relief proceeding regarding Borrower, or
the death of Borrower; and law.
(10) Any other rights and remedies afforded by applicable law.
(X) Subject to paragraph 6 hereof, the terms of this Indemnity are for the
sole and exclusive protection and use of Lender. Subject to paragraph 6
hereof, no party shall be a third-party beneficiary hereunder, and no
provision hereof shall operate or inure to the use and benefit of a
third party.
(Y) Indemnitors expressly hereby waive all rights to a trial by jury in any
action, counterclaim or proceeding based upon, or related to, the
subject matter of this Indemnity. This waiver
applies to all claims against all parties to such actions and
proceedings, including parties who are not parties to this Indemnity.
This waiver is knowingly, intentionally, and voluntarily made by
Indemnitors and Indemnitors expressly acknowledge that neither Lender
nor any person acting on behalf of Lender has made any representations
of fact to induce this waiver of trial by jury or in any way to modify
or nullify its effect. Indemnitors further acknowledge that Indemnitors
have been represented (or have had the opportunity to be represented)
in the signing of this Indemnity and in the making of this waiver by
independent legal counsel, selected of Indemnitors' own free will, and
that Indemnitors have had the opportunity to discuss this waiver with
counsel. Indemnitors further acknowledge that Indemnitors have read and
understand the meaning and ramifications of this Indemnity and,
specifically, this waiver provision.
(Z) (a) Notwithstanding any other provision of this Indemnity to the
contrary, Indemnitors hereby waive any claim or other rights which
Indemnitors may now nave or hereafter acquire against Borrower or any
other guarantor of all or any of the Loan that arise from the existence
or performance of Indemnitors' obligations under this Indemnity (all
such claims and rights are referred to as Indemnitors' "Conditional
Rights"), including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, or indemnification, and any
right to participate in any claim or remedy of Lender against Borrower
or any collateral which Lender now has or hereafter acquires, whether
or not such claim, remedy or right arises in equity or under contract,
statute or common law, by any payment made hereunder or otherwise,
including without limitation, the right to take or receive from
Borrower, directly or indirectly, in cash or other property or by
setoff or in any other manner, payment or security on account of such
claim or other rights. If, notwithstanding the foregoing provisions,
any amount shall be paid to any Indemnitor hereunder on account of any
such 'Indemnitor'-s Conditional -Rights and either (i) such amount is
paid to such Indemnitor at any time when the Loan shall not have been
paid or performed in full, or (ii) regardless of when such amount is
paid to such Indemnitor, any payment made by Borrower to Lender is at
any time determined to be a Preferential Payment (as hereinafter
defined), then such amount paid to such Indemnitor shall be held in
trust for the benefit of Lender and shall forthwith be paid to Lender to
be credited and applied upon the Loan, whether matured or unmatured, in
such order as Lender, in its sole and absolute discretion, shall
determine. As used herein, the term "Preferential Payment" shall mean
any payment all or any part of which is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be
repaid by Lender or paid over to a trustee, receiver or any other
entity, whether pursuant to any bankruptcy act or otherwise
(B) To the extent that any of the provisions of subparagraph (a) of this
Section shall not be enforceable, each Indemnitor agrees that until
such time as the Loan has been paid and performed in full and the
period of time has expired during which any payment made by Borrower or
such Indemnitor to Lender may be determined to be a Preferential
Payment, (i) such Indemnitor's Conditional Rights shall be subordinate
to Lender's right to full payment and performance of the Loan, and (ii)
such Indemnitor shall not enforce such Indemnitor's Conditional Rights.
(AA) Any indebtedness of Borrower now or hereafter owed to or held by any
Indemnitor is hereby subordinated to the indebtedness of Borrower to
Lender; and such indebtedness of Borrower to any Indemnitor shall if
Lender so requests, be collected, enforced and received by such
Indemnitor as trustee for Lender and be paid over to Lender on account
of the indebtedness of Borrower to Lender, but without reducing or
affecting in any manner the liability of such Indemnitor under the
other provisions of this Indemnity.
(BB) If Borrower pays any sum otherwise payable by Indemnitors hereunder and
if such sum must be repaid to Borrower pursuant to any bankruptcy or
insolvency law, then Indemnitors' obligation to pay such sum hereunder
shall not be diminished and shall continue in full force and effect.
(CC) Lender shall have no duty to disclose or report to any Indemnitor any
information now or hereafter known to Lender regarding the Premises or
the Borrower including, without limitation, information regarding any
Environmental Problem or circumstances that could result in an
Environmental Problem.
(DD) Any married person who signs this instrument expressly agrees that
recourse may be had against his or her separate property for all of his
or her obligations or liabilities under this instrument.
(EE) If any term of this Indemnity or any application of any such term shall
be invalid, illegal, or unenforceable, the remainder of this indemnity
and any other application of such term shall remain effective.
(FF) No delay in exercising any right or power hereunder shall operate as a
waiver, and no waiver of any right or power or consent by Lender shall
be valid unless in writing. The failure of Lender to insist upon strict
compliance with any of the terms of this Indemnity shall not be
considered to be a waiver of any such terms, nor shall it prevent
Lender from insisting upon strict compliance with this Indemnity at any
time hereafter
(GG) No provision of this Indemnity may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge, or
termination is sought.
IN WITNESS WHEREOF, Indemnitors have caused this instrument to be executed as
of the date first written above.
(FF) No delay in exercising any right or power hereunder shall operate as a
waiver, and no waiver of any right or power or consent by Lender shall
be valid unless in writing. The failure of Lender to insist upon strict
compliance with any of the terms of this indemnity shall not be
considered to be a waiver of any such terms, nor shall it prevent
Lender from insisting upon strict compliance with this Indemnity at any
time hereafter
(GG) No provision of this Indemnity may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge, or
termination is sought.
IN WITNESS WHEREOF; Indemnitors have caused this instrument to be executed as
of the date first written above
Indemnitors:
32. No delay in exercising any right or power hereunder shall operate as a
waiver, and no waiver of any right or power or consent by Lender shall
be valid unless in writing. The failure of Lender to insist upon strict
compliance with any of the terms of this Indemnity shall not be
considered to be a waiver of any such terms, nor shall it prevent
Lender from insisting upon strict compliance with this Indemnity at any
time hereafter -
33. No provision of this Indemnity may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge; or
termination is sought.
IN WITNESS WHEREOF, Indemnitors have caused this instrument to be executed as
of the date first written above
Indemnitors
ROBERT M. REED, II
DESCRIPTION.: PLYMOUTH PLAZA
EXHIBIT A
A PARCEL OF LAND LYING WITHIN SECTION 30, TOWNSHIP 28 SOUTH. RANGE 16.
EAST PINELLAS COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT CENTER OF SAID SECTION 30; THENCE S.0012'15"E., ALONG THE
CENTERLINE OF U.S. HIGHWAY 19, A DISTANCE OF 50.00 FEET; THENCE N.8955'13"W.,
A DISTANCE OF 100.00 FEET; THENCE S.0012'15"E., A DISTANCE OF 150.94 FEET TO
THE BEGINNING OF A CURVE, HAVING A RADIUS OF 2964.93 FEET AND A CENTRAL ANGEL
OF 2150'27"; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE TO THE LEFT, A
DISTANCE OF 1130.21 FEET, SAID ARC SUBTENDED BY A CHORD WHICH BEARS
S.1101'28"E., A DISTANCE OF 1123.38 FEET; THENCE S.6737'20"W., A DISTANCE OF
26.56 FEET TO THE BEGINNING OF A CURVE, HAVING A RADIUS OF 187.16 FEET AND A
CENTRAL ANGLE OF 0513'00"; THENCE WESTERLY ALONG THE ARC OF SAID CURVE TO THE
LEFT, A DISTANCE OF 17.04 FEET, SAID ARC SUBTENDED BY A CHORD WHICH BEARS
S.6500'50"W., A DISTANCE OF 17.03 FEET FOR A POINT OF BEGINNING ON THE
EXISTING WESTERLY RIGHT OF WAY LINE OF SAID U.S. HIGHWAY 19; SAID POINT BEING
THE POINT OF INTERSECTION WITH A CURVE, HAVING A RADIUS OF 3285.22 FEET AND A
CENTRAL ANGLE OF 0440'20"; THENCE SOUTHEASTERLY ALONG SAID WESTERLY RIGHT OF
WAY LINE ALONG THE ARC OF SAID CURVE TO THE LEFT, A DISTANCE OF 267.90 FEET,
SAID ARC SUBTENDED BY A CHORD WHICH BEARS S.2456'19"E., A DISTANCE OF 267.82
FEET; THENCE S.5351'32"W., A DISTANCE OF50.47 FEET; THENCE N.3608'28"W.,
FEET; THENCE S.5351'32"W., A DISTANCE OF 229.00 FEET; THENCE N.3608'28"W., A
DISTANCE OF 18.50 FEET; THENCE S.5351'32"W., A DISTANCE OF 201.65 FEET;
THENCE N.3608'28"W., A DISTANCE OF 160.00 FEET; THENCE S.5351'32"W., A
DISTANCE OF 210.82 FEET TO THE EASTERLY RIGHT OF WAY LINE OF ENTERPRISE ROAD;
THENCE ALONG SAID EASTERLY RIGHT OF WAY THE FOLLOWING THREE (3) COURSES: (1)
N.5519'05"W., A DISTANCE OF 307.28 FEET; TO THE BEGINNING OF A CURVE, HAVING
A RADIUS OF 270.00 FEET AND A CENTRAL ANGEL OF 4519'50"; (2) NORTHWESTERLY
ALONG THE ARC OF SAID CURVE TO THE RIGHT, A DISTANCE OF 213.62 FEET, SAID ARC
SUBTENDED BY A CHORD WHICH BEARS N.3239'10"W., A DISTANCE OF 208.09 FEET TO A
POINT OF COMPOUND CURVATURE WITH A CURVE, HAVING A RADIUS OF 835.00 FEET AND A
CENTRAL ANGLE OF 0024'40"; (3) NORTHERLY ALONG THE ARC OF SAID CURVE TO THE
RIGHT, A DISTANCE OF 5.99 FEET, SAID ARC SUBTENDED BY A CHORD WHICH BEARS
N.0946'55"W., A DISTANCE OF 5.99 FEET TO A POINT ON THE SOUTH LINE OF THE
PLAT OF DUNEDIN INDUSTRIAL PARK, AS RECORDED IN PLAT BOOK 64, PAGE 76, PUBLIC
RECORDS OF PINELLAS COUNTY FLORIDA; THENCE ALONG THE SOUTHERLY AND EASTERLY
LINES OF SAID PLAT THE FOLLOWING TWO (2) COURSES: (1) S.8955'13"E., AT
DISTANCE OF 6.87 FEET; (2) N.0004'47"W., A DISTANCE OF 135.00 FEET; THENCE
S.8955'13"E., A DISTANCE OF 568.72 FEET; THENCE N.0004'47"E., A DISTANCE OF
10.00 FEET; THENCE S.3656'12"E., A DISTANCE OF 70.43 FEET TO A POINT OF
INTERSECTION WITH A CURVE, HAVING A RADIUS OF 47.75 FEET AND A CENTRAL ANGLE
OF 3812'45"; THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT, A
DISTANCE OF 31.85 FEET, SAID ARC SUBTENDED BY A CHORD WHICH BEARS
N.7738'34"E., A DISTANCE OF 31.26 FEET; THENCE N.5832'12"E., A DISTANCE OF
121.19 FEET TO THE BEGINNING OF A CURVE, HAVING A RADIUS OF 187.16 FEET AND A
CENTRAL ANGLE OF 0352'08"; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE
TO THE RIGHT, A DISTANCE OF 12.64 FEET, SAID ARC SUBTENDED BY A CHORD WHICH
BEARS N.6028'16"E., A DISTANCE OF 12.64 FEET TO THE POINT OF BEGINNING;
CONTAINING 7.239 ACRES, MORE OR LESS.
EXHIBIT NUMBER 10.62
IMPOSITION RESERVE AGREEMENT
THIS IMPOSITION RESERVE AGREEMENT (the "Agreement"), dated as of July 1,
1997, by and among ABR SPECTRUM, LTD. and ABR PLYMOUTH PLAZA, LTD., each a
Florida limited partnership (collectively, the "Borrower "), having an
address at 4102B Quixote Blvd., Tampa, Florida 33613, TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF AMERICA, a New York corporation ("TIAA"), whose
address is 730 Third Avenue, New York, New York 10017 and CAREY KRAMER
COMPANY- FLORIDA, a Florida corporation (the "Collateral Agent") whose
address is 101 East Kennedy Boulevard, Suite 2420, Tampa, Florida 33602.
WITNESSETH:
WHEREAS, simultaneously with the execution of this Agreement, the Borrower
has executed and delivered to TIAA that certain Renewal Promissory Note in
the principal amount of TEN MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100
DOLLARS ($10,850,000.00) (the "Note") and that certain Renewed, Amended and
Restated Mortgage, Assignment of Leases, Security Agreement and Fixture
Filing Statement (the "Mortgage") (all terms and other capitalized terms used
herein without definition are defined in the Note and the Mortgage);
WHEREAS, the Note and the Mortgage provide, among other things, for the
execution of an Agreement providing for the establishment of an Imposition
Reserve Collateral Account (as defined in Section -6 below) to be established
with and implemented by Collateral Agent, as additional security for the
Note and the indebtedness secured by the Mortgage; and
WHEREAS, the Borrower, TIAA and Collateral Agent desire to execute this
Agreement to establish the Imposition Reserve Collateral Account and the
terms and conditions for the implementation of the Imposition Reserve
Collateral Account.
34. Collateral Agent. TIAA hereby appoints and designates Collateral Agent
as bailee of the Imposition Reserve Collateral Account for TIAA for the
purposes set forth herein. Borrower hereby consents to such appointment
and designation, and Collateral Agent hereby accepts such appointment
and designation. Collateral Agent shall serve as Accumulations
Depositary as that term is defined in the Mortgage.
35. Deposits into Impositor Reserve Collateral Account and Disbursements
therefrom.
a. Concurrently with the execution and delivery of this Agreement, the
Borrower shall establish a reserve (the "Imposition Reserve") to be
used for the payment of Impositions (as hereinafter defined), all as
approved by TIAA. The Borrower shall establish the Imposition Reserve
by depositing the sum of $ into the Imposition Reserve
Collateral Account concurrently with the execution and delivery of this
Agreement.
b. on or before the first day of each month during the Term until the Loan
has been paid in full, the Borrower shall deposit into the Imposit on
Reserve Collateral Account the following sums:
A sum equal to all taxes against the Property or property located on the
Property, assessments, water charges and all other impositions
next due on the Property (all as reasonably estimated by the
TIAA)~plus the premiums that will next become due and payable on
policies of fire, rental value and other insurance covering the said
Property and required under the terms of the Mortgage (all of said
taxes, assessments, water charges, other impositions, premiums and any
ground rent and additional rental described below being herein
referred t lo as the "Impositions"), less all sums previously paid
therefor, divided by the number of months to elapse before one month
prior to the date when such Impositions and premiums will become
delinquent (or in the case of ground rent and additional rent, become
due and payable).
Any default in the payment of any sums due from Borrower to TIAA under
this Agreement shall constitute] a default and an event of default
under the Note, the Mortgage, and all of the other Loan Documents,
provided that Borrower shall be entitled to the same grace period
provided in the Note and Mortgage for monetary defaults. Upon the
expiration of said grace period without the Borrower's, cure of the
default, the whole of the principal sum evidenced by the Note, together
with all accrued interest and all other sums secured by the Mortgage,
shall immediately become due and payable at the option of TIAA.
c. All sums mentioned in the preceding subsection 2(b) shall be paid by the
Borrower to Collateral Agent each month and shall be held by the
Collateral Agent in the Imposition Reserve Collateral Account and such
sums shall be distributed by the Collateral Agent as directed by TIAA
and shall be applied to the following items in the following order: to
the taxes, assessments, water charges, of er public impositions, and
fire, rental value and other insurance premiums. TIAA hereby instructs
Collateral Agent to pay the Impositions as and when the same become due
and payable provided that there are sufficient funds in the Imposition
Reserve Collateral Account to pay the same.
TIAA shall have the right to require Collateral Agent to make any such
payment notwithstanding that--at that time any such tax, assessment, charge
or imposition is then being protested or contested by Borrower, unless, upon
not less than forty-five (45) days prior to the due date thereof, Borrower
shall have notified TIAA, in writing, of such protest or contest, in which
event TIAA shall permit Borrower to make such protest in the manner
prescribed by law and TIAA shall instruct Collateral Agent to withhold
payment of the contested amount; provided, however, that such contest shall
preclude enforcement of collection and the sale of the Property in
!satisfaction of such tax, assessment, charge or imposition.
In the event such protest or contest shall or might result in penalty or
other charges, Borrower shall likewise deposit monthly',pro rata the amount
of any such penalty or additional charge.
In the event of the sale of the said Property, any such funds then on deposit
with the Collateral Agent automatically and without the necessity of further
notice or written assignment, shall be transferred to and held thereafter for
the account of the new owner to be applied in accordance with the foregoing.
d. Any excess funds accumulated in the Imposition Reserve Collateral
Account (including interest) after payment of the items to be paid
therefrom shall be credited to the subsequent monthly payment is of the
same nature required hereunder; but if any such item shall exceed the
estimate therefor, Borrower shall within fifteen (15) days after
written notice from TIAA of deficiency make good the deficiency.
Failure to do so before the delinquency date of such item shall be a
default under the Note, the mortgage, this Agreement and the other Loan
Documents, and, upon the expiration of the applicable grace period, the
whole Of the principal sum evidenced by the Note, together with any and
all accrued but unpaid interest thereon and all other sums secured by
the Mortgage shall immediately become due a the option of the TIAA. If
the Property described herein is sold under foreclosure or is otherwise
acquired by TIAA after default, any remaining balance of the
accumulations in he Imposition Collateral Agreement shall he credited.
to the commencement of foreclosure proceedings or as of the date the title
to said Property is acquired.
(c) Application of Funds in Imposition Reserve Collateral Account on a
Payment Date. Upon payment in full of the Loan, TIAA shall immediately
instruct Collateral Agent to release all funds remaining in the
Imposition Reserve Collateral Account to Borrower.
(d) Security Interest. Borrower hereby grants to TIAA a first priority
security nterest in the Imposition Reserve Collateral Account and
agrees to take all action necessary to perfect and preserve such
security interest in such Imposition Reserve Collateral Account in
favor of TIAA. The Borrower shall not encumber or grant a security
interest in such Imposition Reserve Collateral Account to any other
party without the prior written consent of TIAA. The security interest
referred to herein shall secure the Note and the payment and
performance of all of the obligations of the Borrower under the Note,
the Mortgage, this Agreement land all of the other Loan Documents. The
Borrower shall, upon the request of TIAA, execute and deliver to TIAA
any instrument that TIAA shall request to further evidence the creation
of or to perfect such security interest.
If the Borrower shall default under this Agreement, the Note, the Mortgage or
any other Loan Document, after giving effect to any applicablei,grace periods
or cure rights, the Borrower hereby irrevocably agrees that TIAA may direct
the Collateral Agent to pay and deliver to TIAA all sums in the Imposition
Reserve Collateral Account. In addition, TIAA shall have, with respect to
the Imposition Reserve Collateral Account, all rights of a.secured party
under.the Florida Uniform Commercial Code and other applicable State law,
including the right to foreclose the security interest therein created by this
Agreement. This security interest shall secure the Loan and the payment and
performance of all of Borrower's obligations under the Loan Documents, incl
ding without limitation Borrower's obligations under this Agreement. Borrower
shall, upon TIAA's request, execute and deliver to TIAA any instrument or
instruments that TIAA shall reasonably require in order to further evidence
the creation of or to perfect the security interest described above,
including without limitation a separate security agreement and/or a separate
notification to Collateral Agent(s) (or any succest Collateral Agent(s)),and
the depository maintaining the Imposition Reserve Collateral Account of the
existence of TIAA's security interest in the Imposition Reserve Collateral
Account and an assignment in substantially the same form as Exhibit"A"
attached hereto and by this reference made a part hereof. Borrower hereby
appoints TTAA as its attorney-in-fact coupled with an interest, and
authorizes, directs and empowers such attorney, at the option of such
attorney, on behalf of Borrower to execute such security agreements,
notifications to Collateral Agent(s) (or any successor Collateral Agent(s))
and the depository maintaining the Imposition Reserve Collateral Account as
may be required by TIAA and Collateral Agent.
Expenses of retaking, holding, preparing for sale, selling or the like shall
include TIAA's reasonable attorneys' fees and legal expenses, including
without limitation those attorneys' fees and legal expenses incurred by TIAA
in connection with any insolvency, bankruptcy, reorganization, arrangement or
other similar proceedings involving Borrower which in any way affect the
exercise by T AA of its rights and remedies hereunder.
(e) Reports to TIAA. Within ten (10) days after the end of calendar month,
Collateral Agent shall deliver to TIAA and the Borrower a written
statement showing all deposits and withdrawals for the Imposition
Reserve Collateral Account for such month. In addition, Collateral
Agent shall, on a monthly basis, provide the Borrower and TIAA with
copies of all bank statements received by it which are issued in
connection with the Imposition Reserve Collateral Account.
(f) Investment of kunds; Interest. Collateral Agent will invest the funds
delivered to it by Borrower pursuant to the terms hereof (collectively,
the "Imposition Payments") at or another commercial bank in
its sole discretion (the "Bank"). The Bank may not be changed without
TIAA's consent which may be withheld by TIAA in its sole discretion.
The Borrower shall be permitted are made but only United~States Treasury
Bills (with such as investments: checking accounts, saving accounts,
money market to suggest the type of investment accounts into which
deposits maturity dates as TIAA may permit but in no event more than
365 days) and investment acclunts insured by the Federal Deposit
Insurance Corporation of~the following types shall be permitted
accounts, and certificates of deposit with such maturity dates as TIAA
may permit (but in 'o event more than 365 days). All of the accounts
and investmentsninto which Imposition Payments are deposited are
referred to collectively as the "Imposition Reserve Collateral Account".
Borrower shall execute such assignments and security agreements and
pledges as may be required by TIAA in order to perfect TIAA's security
interest in the Reserve Collateral Account. Without limiting the
generality of the foregoing, upon TIAA's request, Borrower and
Collateral shall execute assignments of investment accounts in
substantially the same form as Exhibit "A" attached hereto and by this
reference made a part hereof. All interest accruing on the Imposition
Reserve Collateral Account shall be deemed to be the income of the
Borrower for income tax purposes only, but shall be held int he
Imposition Reserve Collateral Account in accordance with the terms
hereof.
(g) Actions and Duties of the Collateral Agent.
(a) The Borrower shall pay all out-of-pocket expenses and fees of Collateral
Agent and the Bank incurred in maintaining and operating the Imposition
Collateral Agent and the out-of-pocket expenses and fees directly
against the Imposition Reserve Collateral Account, upon written notice
to TIAA and the Borrower.
(b) Unless it has knowledge to the contrary, Collateral Agent may act in
reliance upon any Writing or instrument or signature Which it, in good
faith, believes to be genuine, may assume the validity and accuracy of
any statement or assertion contained in such a writing or instrument
and may assume that any person purporting to give any writing, notice,
advice or instruction in connection with the provisions hereof has been
duly authorized so to do.
(c) Collateral] Agent's duties under this Agreement shall be limited to:
(a) Accepting the Imposition Payments for deposit into the Imposition
Reserve Collateral Account;
(ii) Instructing Bank to invest and reinvest such sums from time to time
pursuant to the terms of this Agreement in permitted investments; and
(C) Managing and promptly releasing funds as provided in and subject and
pursuant to the terms of this Agreement.
Collateral Agent shall have no responsibility whatsoever for any of the
following:
(4) Confirming the accuracy or correctness of any disbursement instructions
made by TIAA;
(e) Confirming the accuracy of any direction by TIAA to terminate the
Imposition Reserve Collateral Account pursuant to Paragraph 9 of this
Agreement; or
(6) Confirming the accuracy of any direction by TIAA to pay any balance in
the Imposition Reserve Collateral Account pursuant to Paragraph 9 of
this Agreement.
(D) Collateral Agent undertakes to perform only such duties as are
expressly set forth herein and no implied duties or obligations shall
be read into this Agreement against Collateral Agent, provided that
Collateral Agent shall use the same standard of care in managing funds
as would a prudent funds manager.
(E) The Borrower hereby agrees to indemnify Collateral Agent and hold it
harmless from any and all claims, liabilities, losses, actions, suits
or proceedings at law or in equity, or any other expenses, fees or
charges of any character or nature, which it may incur by reason of its
acting as Collateral Agent under this Agreement, unless the same arises
out of Collateral Agent's breach of this Agreement or its negligence or
misconduct in performing its obligations hereunder and, in connection
therewith, to indemnify Collateral Agent against any and all reasonable
expenses, including attorneys' fees and costs incurred in defending any
such action, suit or proceeding or resisting any such claim.
(F) If the parties hereto shall be in disagreement about the interpretation
of this Agreement, or about their rights and obligations hereunder, or
the propriety of any action contemplated by Collateral Agent hereunder,
any party hereto may, at its discretion, file an action in a Florida
court of competent jurisdiction to resolve such disagreement, but in no
event shall Collateral Agent have the right to interplead funds in the
Imposition Reserve Collateral Account and instead shall retain
possession thereof as bailee for TIAA until such dispute is settled or
judgment rendered by a court of competent jurisdiction. Subject t
Section 7(e), Collateral Agent shall be indemnified by the Borrower for
all reasonable costs, including attorneys' fees, in connection with any
such action, and shall be fully protected in suspending all or a part
of its activities under this Agreement until a final judgment in the
action is received.
(G) Collateral Agent shall not be liable for any mistake of fact or error
of judgment or for any acts or omissions of any kind unless cause by
the misconduct or negligence of Collateral Agent or Collateral Agent's
breach of this Agreement. Collateral Agent shall not be deemed to be in
violation of this Agreement if it is complying with a court order,
including an attachment, garnishment or levy.
(H) Collateral Agent may resign upon thirty (30) days prior written notice
to the parties to this Agreement. If a successor collateral agent is
not appointed within a thirty (30) day period following such written
notice, Collateral Agent may petition a Florida court of competent
jurisdiction to name a successor. The costs of such action shall be paid
by the Borrower and shall be subject to the provisions of Paragraph
7(e) hereof.
(A) The Borrower and Collateral Agent acknowledge that the Collateral Agent
is acting as bailee of the Imposition Reserve Collateral Account for
TIAA in order to perfect TIAA's possessory security interest in the
Imposition Reserve Collateral Account. Collateral Agent shall have no
claim against the Imposition Reserve Collateral Account and
relinquishes any right or claim it may have against any Imposition
Reserve Collateral Account, other than for the fee and expense
reimbursement payable to Collateral Agent as prlbvided in Section 7(a)
of this Agreement. Collateral Agent hereby irrevocably, and
unconditionally waives and agrees not to exercise any rights now or
hereafter granted under any agreement with the Borrower, under
applicable law or otherwise to set off and/or to appropriate and apply
all or any portion of the funds held in or deposited into the
Imposition Reserve Collateral Account on account of any indebtedness,
liabilitieslor other obligations owed to Collateral Agent (other than
liabilities owed to Collateral Agent under Section 7(a) of this
Agreement).
(H) Discharge of Collateral Agent. TIAA may at any time and from time to
time terminate Collateral Agent's responsibili ties and substitute a new
collateral agent hereunder. The new collateral agent shall belsubject
to the Borrower's approval, which approval will not be unreasonably
withheld or delayed. Within ten (10) days after notification from TIAA
in writing that a new collateral agent has been substituted for it,
Collateral Agent shall, after paying any outstanding fees and expenses
of Collateral Agent incurred in maintaining and operating the
Imposition Reserve Collateral Account and reimbursable under Section
7(a), transfer over to the new Collateral Agent all of the funds in the
Imposition Reserve Collateral Account and, upon the transfer to the new
Collateral Agent, shall be relieved of any duties hereunder arising
thereafter except for the obligation to give the reports required
hereunder with respect to any prior or current periods.
Contemporaneously with such transfer, Collateral Agent shall deliver to
TIAA and the Borrower a report showing the amount transferred.
(I) Termination of Agreement. This Agreement shall terminate when TIAA
provides Collateral Agent with written notification that the
indebtedness and obligations evidenced and secured by the Note and the
Mortgage, have been satisfied in full (which notification shall be given
by TIAA following such satisfaction), at which time Collateral Agent
shall, after paying any outstanding fees and expenses of Collateral
Agent incurred in maintaining and operating the Imposition Reserve
Collateral Account and reimbursable under Section 7(a), transfer any
remaining funds in the Imposition Reserve Collateral Accounts to the
Borrower. Notwithstanding the aforesaid to the contrary, if TIAA shall
at any time notify Collateral Agent or the Borrower that the Borrower
has de aulted under the Note, the Mortgage or any other Loan Document,
then, upon the expiration of the applicable grace period, the then
remaining balance in the Imposition Reserve Collateral Account, after
payment of all fees and expenses of Collateral Agent incurred in
maintaining and operating the ImpositionlReserve Collateral Account,
shall be disbursed forthwith by Collateral Agent to TIAA, and TIAA
shall credit same to any of the indebtedness evidenced and secured by
such documents, in such order and priority as TIAA in its sole judgment
may deem appropriate.
(J) Notices. All notices and communications hereunder shall be in writing
and hall be deemed to be duly given if sent by registered or certified
mail, return receipt requested, postage prepaid, or via Federal Express,
to the addresses set forth in the preamble of;this Agreement. In
addition, financial reports, bank statements, projections and
disbursement instructions may be delivered by regular mail. The name or
place to which notice must be given may be changed by thirty (30) days,
prior written notice thereof.
Collateral Agent: Carey Kramer Company-North Florida
TIAA: Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, New York 10017
Attention: Director of Special Loans
RE FL
Borrower: ABR Spectrum, Ltd.
ABR Plymouth Plaza, Ltd. 4102B Quixote Blvd.
Tampa, Florida 33613
Attention: Robert M. Reed, II
(K) Miscellaneous.
1. This Agreement shall inure to the benefit of and shall be binding upon
the parties hereto and upon their respective successors and assigns.
This Agreement is made solely for the benefit of the Borrower,
Collateral Agent and TIAA and shall not create or confer rights,
benefits or privileges upon any other person.
2. This Agreement shall be construed, enforced and interpreted under the
laws of the State of Florida, without regard to principles of conflict
of laws.
3. In the event of any litigation hereunder or arising out of the
Imposition Reserve contemplated by this Agreement, between the Borrower
on the one side and Collateral Agent and/or TIAA on the ether, subject
to Section 7, the substantially prevailing arty or parties shall be
entitled to its reasonable attorneys' fees and other costs incurred in
such litigation.
4. A failure to make a demand upon or give a notice immediately upon
having the right to do so will not be deemed a waiver. A right to make
a demand or give a notice will be continuing and may be made at any
time.
5. This Agreement may only be amended in writing by an agreement executed
by 411 of the parties hereto.
6. If any provision of this Agreement is held to be invalid, void or
unenforceable, the remaining provisions will not be affected or
impaired and the remaining provisions will remain in full force and
effect.
7. The headings used herein are for convenience only and are not to be
used in interpreting this Agreement.
8. This Agreement may be executed in one or more counterparts and/or with
counterpart signature pages, each of which shall constitute one and the
same agreement. This Agreement may also be executed by facsimile
signatures.
(i) This Agreement may be executed in cne or more counterparts and/or
withlcounterpart signature pages, each of which shall constitute one
and the same agreement. This Agreement may also be executed by
facsimile signatures.
IN WITNESS WHEREOF; the parties hereto have executed this Agreement on the day
andlyear first above written.
ABR SPECTRUM, LTD., a Florida limited partnership
Robert M. Reed, II
as Managing General Partner
ABR PLYMOUTH PLAZA, LTD., a Florida limited partner
Robert M. Reed, II
as Managing General Partner
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York
corporation
By:
CAREY KRAMER COMPANY-SOUTH FLORIDA, a Florida corporation
Name:
Title:
FORM OF DEPOSIT ASSIGNMENT
For value received, ABR SPECTRUM, LTD., ABR PLYMOUTH PLAZA, LTD. and CAREY
KRAMER COMPANY-I,SOUTH FLORIDA (collectively, "Assignor") hereby assign,
transfer and set over unto TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF
AMERICA ("Assignee") all of Assignor's right, title and interest in and to:
Account Numbers maintained at maintained in ("Depository"), together with
all moneys due and to become due thereon, including principal and interest or
dividends.
This assignment includes any substitutions, renewals, and additions to the
above-described account and certificate.
This assignment is made as security for any and all obligations of ABR
SPECTRUM, LTD., ABR PYMOUTH PLAZA, LTD. in favor of Assignee, including, but
not limit d to, obligations arising in connection with that certain loan f om
Assignee to ABR SPECTRUM, LTD., ABR PLYMOUTH PLAZA, LTD. e idenced by that
certain Consolidation Promissory Note dated as f , 1997 and that certain
Modification and Restatement of Mortgage, dated as of
1997 and any other documents executed in connection therewith (collectively,
the "Obligations").
This assignment shall continue in effect until Assignee notifies Depository
in writing of the release of this assignment.
Assignee is hereby author] any amounts representing in accordance with the t
Agreement between Assigno 1997. Depository is dir fide claim to Assignee up to
the obligations or the entitlement of Assignee to charge against the above
account any sums representing such Obligations, and such payment shall
constitute an acquittance of Depository with respect to such payment.
Depository shall not pay any portion of the balance or interest ther on to
ABR SPECTRUM, LTD., ABR PLYMOUTH PLAZA, - LTD.-; however, Depository may-pay
such portions of the balance and interest thereon until authorized to charge
against the above account bligations owed by Assignor to Assignee rms of
that certain Imposition Reserve and Assignee dated as of , acted to pay the
amount of any such bona n demand therefor, without inquiring as Assignee
notifies Depository to cease honoring disbursement requests from
ABR SPECTRUM, LTD., a Florida limited partnership
By
Robert M. Reed, II
as Managing General Partner
ABR PLYMOUTH PLAZA, LTD., a Florida limited partner
BY
Robert M. Reed, II
as Managing General Partner
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York
corporation
By:
CAREY KRAMER COMPANY-SOUTH FLORIDA, a Florida corporation
By:
Name:
Title:
EXHIBIT NUMBER 10.63
ESCROW AGREEMENT
This Escrow Agreement is made and entered into effective this
30th day of July, 2002, by and between ABR SPECTRUM, LTD., a
Florida limited partnership, hereinafter referred to as "Seller";
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP, a
Wisconsin limited partnership, hereinafter referred to as
"Buyer"; and FOWLER WHITE BOGGS BANKER, P.A., hereinafter
referred to as "Escrow Agent."
WITNESSETH:
WHEREAS, Seller is the owner and holder of the premises legally
described on Exhibit A attached hereto and incorporated herein by
virtue of this reference (the "Premises").
WHEREAS, Seller has contracted to sell, and Buyer has contracted
to purchase, the Premises.
WHEREAS, Seller has agreed to pay certain monies for repairing
sinkholes on the Premises, in accordance with the terms of this
Agreement;
NOW, THEREFORE, in consideration of mutual premises contained,
and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto do hereby agree as
follows:
1. The above captioned recitals are true and correct.
2. Buyer and Seller do hereby agree that at the closing of the
transaction contemplated herein, Seller shall deliver to
Escrow Agent the amount of $62,000.00, to be held in escrow
by the Escrow Agent, for the benefit of both Buyer and
Seller. Said escrow monies shall be disbursed as follows:
a. Escrow Agent shall disburse funds to contractors either
as advanced deposits, or following completion of the
work, for work performed or labor supplied in the
repair of said sinkholes. Repair of said sinkhole
damage shall be completed no later than November 30,
2002; provided, however, this date may be extended by
Acts of God, strikes, lack of materials, or other
matters outside the control of Seller.
b. In the event that there are not sufficient funds held
by Escrow Agent to pay for the cost of all obligations
incurred by Seller hereunder, Seller shall be
responsible for paying said difference; in the event
the escrowed funds exceed the amount necessary to pay
for said repairs, Escrow Agent shall return said excess
to Seller.
c. Seller does hereby agree that all of Seller's
obligations hereunder shall be performed in a good and
workmanlike manner, by properly licensed and insured
contractors. Seller does hereby further agree that
Seller shall obtain a final release of lien in
recordable form from each contractor as said contractor
completes their work.
3. In the event that any litigation is instituted to enforce or
interpret the terms of this Agreement, the parties agree
that the exclusive forum thereof shall be the Circuit Courts
of Orange County, Florida. In the event of said litigation,
the prevailing party shall be entitled to reimbursement from
the other for all reasonable attorneys' fees and costs
incurred, including but not limited to those incurred
incident to any appeal.
4. Escrow Agent undertakes to perform only such duties as are
expressly set forth herein and no other obligations shall be
read into this Agreement against Escrow Agent.
5. Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to
be genuine, may assume the validity and accuracy of any
statement or assertion contained in such writing or
instrument, and may assume that any person purporting to
give any writing, or notice, advise, or instructions in
connection with the provisions hereof has been duly
authorized to do so. Escrow Agent shall not be liable in
any manner for the sufficiency or correctness as to form,
manner and execution, or validity of any instrument
deposited in this escrow, nor as to the identity, authority
or right of any person executing the same; and its duties
hereunder shall be limited to the safekeeping of such
certificates, monies, instruments, or other documents
received by it as such Escrow Agent, and for the disposition
of the same in accordance with the written instruments
accepted by it in the escrow.
6. If the parties shall be in disagreement about the
interpretation of this Agreement, or rights or obligations
hereunder, or the propriety of any action contemplated by
Escrow Agent hereunder, Escrow Agent may, in its sole
discretion, file an action in interpleader to resolve said
disagreement.
7. Escrow Agent may resign upon ten (10) days' advance written
notice to the parties to this Agreement. If a successor
Escrow Agent is not appointed within said ten (10)-day
period, Escrow Agent may petition any court or competent
jurisdiction to name a successor.
8. The rights created by this Agreement shall inure to the
benefit of and the obligations created hereby shall be
binding upon the parties hereto, their successor and
assigns.
SELLER:
ABR SPECTRUM, LTD., a Florida limited
partnership
By: (Corporate Seal)
REED DEVELOPMENT COMPANY,
a Florida corporation, as General Partner
By: /s/ Robert M. Reed
Robert M. Reed, II, President
BUYER:
DECADE COMPANIES INCOME
PROPERTIES, A LIMITED PARTNERSHIP, a
Wisconsin limited partnership
By: Decade Companies, General Partner,
a Wisconsin general partnership
By: (Corporate Seal)
Decade 80, Inc., a Wisconsin
corporation, as General Partner of
Decade Companies
By: /s/ Jeffrey Keierleber
Jeffrey Keierleber, President
By: /s/ Jeffrey Keierleber
Jeffrey Keierleber, as General Partner
of Decade Companies
ESCROW AGENT:
(Corporate Seal)
FOWLER WHITE BOGGS BANKER, P.A.
By: /s/ Illegible, as General Partner
EXHIBIT A
LEGAL DESCRIPTION: PARCEL 1
EXHIBIT B
LEGAL DESCRIPTION
SPECTRUM PROPERTY
A part of Tract 9, MAITLAND CENTER SECTION THREE, Maitland,
Orange County, Florida, according to the plat thereof as recorded
in Plat Book 10, Page 10, Public Records of Orange County,
Florida, more particularly described as follows:
BEGIN at the Southwest corner of SUN BAY CLUB UNIT I, as shown on
the plat thereof as recorded In Condominium Plat Book 7, Pages 74
through 87, Public Records of Orange County, Florida; THENCE
North 69Section56'05" East along the South boundary of said SUN BAY
CLUB UNIT I a distance of 42.00 feet-, THENCE South 78Section03'55"
East a distance of 200.00 feet; THENCE South 2822'30" East a
distance of 44.11 feet; THENCE South 69Section12'28" East a distance of
753.22 feet to the Southeast comer of Tract 9; THENCE South
64Section33'33" West a distance of 1057.07 feet to a point on the West
boundary of Tract 9, said point being on a curve concave
Southwesterly, a radial line to said point bearing South
88Section23'40" East; THENCE Northerly along said West boundary, along
the arc of said curve, having a radius of 709.07 feet, through a
central angle of 18Section47`19" a distance of 232.52 feet to a point
of reverse curvature of a curve concave Easterly; THENCE
Northerly along said West boundary of Tract 9, along the arc of
said curve having a radius of 639.07 feet, through a central
angle of 33Section05'55" a distance of 3$9.1$ feet to a point of
reverse curvature of a curve concave Westerly; THENCE Northerly
along said West boundary of Tract 8, along the arc of said curve
having a radius of 709.07 feet, through a central angle of
15Section58'60" a distance of 197.77 feet to a point of tangency;
THENCE North 00Section03'55" West along said West boundary of Tract 9,
a distance of 12.97 feet to the point of beginning.
EXHIBIT C
This instrument prepared by and
after recording return to:
Leo J. Salvatori, Esq.
Quarles & Brady LLP
4501 Tamiami Trail N., Ste, 300
Naples, FL 34103
PARTIAL RELEASE OF MORTGAGE
Know All Men By These Presents:
WHEREAS, ASR PLYMOUTH PLAZA, LTD, and ABR SPECTRUM, LTD, both
entities being Florida limited partnerships, hereinafter referred
to as "Mortgagor", executed an 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, and other collateral loan
documents (hereinafter referred to as "Loan Documents"') in favor
of TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New
York corporation, hereinafter referred to as "Mortgagee", bated
July 1, 1997, and recorded July 21, 1997, In Official Records
Book 5294, Page 912, of the Public Records of Orange County,
Florida; and recorded July 29, 1997, In Official Records Book
9788, Page 638, of the Public Records of Pinellas County,
Florida, encumbering the premises therein described, in the
original principal sum of TEN MILLION EIGHT HUNDRED FIFTY
THOUSAND DOLLARS ($10,850,000.00), with interest as therein
mentioned: and
WHEREAS, on October 30, 1992 ABR Spectrum, Ltd., a Florida
limited partnership ("Spectrum"), executed and delivered to First
Union National Bank of Florida, a national banking association
("First Union"), that certain Real Estate Promissory Note in the
original principal amount of Eight Million Forty-Eight Thousand
and No/100 Dollars (68,048,000,00) ("First Union Note"), which
First Union Note was secured by that certain Mortgage and
Security Agreement dated October 30, 1992 and recorded November
4, 1992 in Official Records Book 4483 at Page 2903 of the
Official Records of Orange County, Florida ("First Union
Mortgage"); and
WHEREAS, the First Union Note was further secured by that certain
Assignment of Leases and Rents dated October 30, 1992 land
recorded November 4, 1992 In Official Records Book 4483 at Page
2928 of the Official Records of Orange County, Florida ("First
Union Assignment"); and
WHEREAS, on November 23, 1992 ABR Plymouth Plaza, Ltd., a Florida
limited partnership ("Plymouth"), executed and delivered to The
Chase Manhattan Bank, N.A., a national banking association
("Chase") that certain Promissory Note in the original principal
amount of Two Million Eight Hundred Ninety-Six Thousand and
No/100 Dollars ($2,896,000.00) ("Chase Note"), which Chase Note
was secured by that certain Mortgage Deed and Security Agreement
dated November 23, 1992 and recorded In Official Records Book
8108 at Page 2182 of the Official Records of Pinellas County,
Florida ("Chase Mortgage"); and
WHEREAS, the Chase Note was further secured by that certain
Collateral Assignment of Leases, Rents and Contract Rights dated
November 23, 1992 and recorded in Official Records Book 8108 at
Page 2202 of the Official Records of Pinellas County, Florida
("Chase Assignment"), and
WHEREAS, First Union assigned, transferred and set over the First
Union Note, First Union Mortgage and First Union Assignment to
Teachers Insurance and Annuity Association of America, a New York
corporation, by virtue of that certain Assignment of Note and
Mortgage dated July 1, 1997 ("Assignment of First Union Note and
Mortgage") and that certain Assignment of First Union Assignment,
dated July 1, 1997 ("Assignment of First Union Assignment") and
recorded in Official Records Book 5294 at Page 908 of the Public
Records of Orange County, Florida; and
WHEREAS, Chase assigned, transferred and set over the Chase Note,
Chase Mortgage and Chase Assignment to Lennar Northeast Partners
Limited Partnership ("Lennar"), a Delaware limited partnership,
by virtue of that Assignment of Mortgage and other Loan Documents
dated November 3, 1994 and recorded in Official Records Book
8909, Page 683 of the Public Records of Pinellas County, Florida;
and
WHEREAS, Lennar assigned, transferred and set over the Chase
Note, Chase Mortgage and Chase Assignment to Bank Midwest, N.A.,
a national banking association ("Bank Midwest"), by virtue of
that certain Assignment of Mortgage and other Loan Documents
dated October 31, 1995 and recorded in Official Records Book
9155, Page 612 of the Public Records of Pinellas County, Florida;
and
WHEREAS, Bank Midwest assigned, transferred and set over the
Chase Note, Chase Mortgage and Chase Assignment to Teachers by
virtue of that certain Assignment of Note and Mortgage, dated
June 30, 1997 ("Assignment of Chase Note and Mortgage") and that
certain assignment of Chase Assignment dated June 30, 1997
("Assignment of Chase Assignment") and recorded in Official
Records Book 9788, Page 831 of the Public Records of Pinellas
County, Florida; and
WHEREAS, said Loan Documents have bean assigned by Mortgagee to
Decade Mortgage Loan Partners, LLC, a Wisconsin limited liability
company; and
WHEREAS, the said Mortgagor, has requested the said Mortgagee to
release the premises hereinafter described, being part of said
mortgaged premises, from the lien and operation of said Mortgage
and collateral Loan Documents.
NOW THEREFORE, KNOW YE, that the said Decade, in consideration of
the premises and of the sum of TEN and 00/100 DOLLARS ($10.00),
to Decade in hand paid by, or on behalf of, Mortgagor at the time
of the execution hereof, the receipt whereof is hereby
acknowledged, do remise, release, quit-claim, exonerate and
discharge from the lien and operation of said Mortgage and all
other collateral loan documents unto the said Mortgagor, its
heirs and assigns, that certain portion of the premises conveyed
by said Mortgage, more particularly described as follows:
See Exhibit A attached hereto and incorporated herein by virtue
of this reference.
This partial release will also serve to release the premises
described above, together with any personal property or fixtures
located on or within the same, from the lien and charge of that
certain Assignment of Leases and Rents recorded in Official
Records Book 9788, Page 928, of the Public Records of Pinellas
County, Florida, and from the lien and charge of that certain
UCC-1 Financing Statement recorded in Official Records Book 8108,
Page 2214, of the Public Records of Pinellas County, Florida, as
assigned by document recorded in Official Records Book 9788, Page
837 of the Public Records of Pinellas County, Florida; and from
the lien and charge of that certain UCC-1 Financing Statement
recorded in Official Records Book 9788, Page 944, of the Public
Records of Pinellas County, Florida.
TO HAVE AND TO HOLD the same, with the appurtenances, unto the
said Mortgagor, its heirs and assigns forever, freed, exonerated
and discharged of and from the lien of said Mortgage, and every
part thereof; provided always, nevertheless, that nothing herein
contained shall in anywise impair, alter or diminish the effect,
lien or encumbrance of the aforesaid Mortgage on the remaining
part of said mortgaged premises, not hereby released therefrom,
or any of the rights and remedies of the holders thereof.
IN WITNESS WHEREOF, the said Mortgagee has hereunto set its hand
and seal this day of September, 2002.
Signed, sealed and delivered in (Corporate Seal)
the presence of: DECADE MORTGAGE LOAN PARTNERS, LLC, a
Wisconsin limited
/s/ Nan Gregory liability company
Witness No. 1 Signature
Nan Gregory
Witness No. 1 Printed Name By: /s/ Jeff Keieleber
Jeff Keieleber
/s/ Patsy E. Trusal as Manager
Witness No. 2 Signature
Patsy E. Trusal
Witness No. 2 Printed Name
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this
13th day of September, 2002, by Jeffrey Keieleber as General
Manager of Decade Mortgage Loan Partners, LLC, a Wisconsin
limited liability company, who is personally known to me.
Nan Gregory /s/ Nan Gregory
My Commission DD084587 NOTARY PUBLIC
Expires August 01, 2005
Nan Gregory
TYPED, PRINTED OR STAMPED NAME OF NOTARY
My commission expires:
EXHIBIT D
GENERAL RELEASE
KNOW ALL MEN BY THESE PRESENTS:
THAT DECADE MORTGAGE LOAN PARTNERS, LLC, a Wisconsin limited
liability company, first party, for and in consideration of the
sum of Ten Dollars ($10.00), and other valuable consideration,
received from or on behalf of ABR PLYMOUTH PLAZA, LTD., ABR
SPECTRUM, LTD., REED DEVELOPMENT COMPANY, ROBERT M. REED, II,
THOMAS E. BEACH and DAVID R. ATKINSON, as well as all employees,
officers, directors, partners, agents and independent contractors
thereof, all hereinafter referred to as second party, the receipt
whereof is hereby acknowledged.
HEREBY remise, release, acquit, satisfy, and forever discharge
the said second party, from any and all liability created under
any document held by the undersigned as a result of the
assignment of the same to the undersigned by Teachers Insurance
and Annuity Association of America.
IN WITNESS WHEREOF, the undersigned has set their hand and seal
this 13th day of September, 2002.
Signed, sealed and delivered in
the presence of: DECADE MORTGAGE LOAN PARTNERS, LLC,
a Wisconsin limited
/s/ Nan Gregory liability company
Witness No. 1 Signature
Nan Gregory
Witness No. 1 Printed Name By: /s/ Jeff Keieleber
Jeff Keieleber
/s/ Patsy E. Trusal as General Manager
Witness No. 2 Signature
Patsy E. Trusal
Witness No. 2 Printed Name
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this
13th day of September, 2002, by Jeffrey Keieleber as General
Manager of Decade Mortgage Loan Partners, LLC, a Wisconsin
limited liability company, who is personally known by me or who
has produced as identification.
Nan Gregory /s/ Nan Gregory
My Commission DD084587 NOTARY PUBLIC
Expires August 01, 2005
Nan Gregory
TYPED, PRINTED OR STAMPED NAME OF NOTARY
My commission expires:
EXHIBIT NUMBER 10.64
This Assignment was prepared by: Manuel A. Fernandez, Esq.
3300 Stroock & Stroock & Liavan LLP
First Union Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131-2385
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS made this 28th day of June 1997, by ABR
SPECTRUM, LTD., a Florida limited partnership ("Borrower"), having its
principal place of business at 4102B Quixote Boulevard, Tampa, Florida
33613
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA ("Lender"), a New York
corporation, having an address at 730 Third Avenue, New York, New York 10017.
RECITALS:
3. Lender agreed to make and Borrower and ABR PLYMOUTH PLAZA, LTD., a
Florida limited partnership ("Co-Maker") agreed to accept a loan (the
"Loan") in the maximum amount of TEN MILLION EIGHT HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($10,850,000.00).
4. To evidence the Loan, Borrower and Co-Maker executed and delivered to
Lender a renewal promissory note (the "Note"), dated the date of this
Assignment, in the principal amount of TEN MILLION EIGHT HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($10,850,000.00) (that amount or so much as
is outstanding from time to time is referred to as the "Principal"),
promising to pay the Principal with interest thereon to the order of
Lender as set forth in the Note, until: the Monetary Obligations (as
defined below) have been paid in 'full, with the balance, if any, of
the Monetary Obligations being due and payable on August 1, 2007 (the
"Maturity Date").]
5. Borrower owns the fee interest in the Land (as defined below) together
with the improvements located on the Land.
6. Borrower's and Co-Maker's obligations under the Note are secured by a
Renewed, Amended and Restated Mortgage, Assignment of Leases and Rents,
Security Agreement and Fixture Filing Statement (the "Mortgage") ,
dated the date of this Assignment, that encumbers the land (the'
"Land") described in Exhibit A, the improvements located on the Land
and certain other property, rights
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1. Definitions. Capitalized terms used in this Assignment are
defined in Exhibit B of theMortgage.
Section 1.2. Rules of Construction. This Assignment will be interpreted
in accordance with the rules of construction set forth in Exhibit C of
the Mortgage.
ARTICLE II
GRANTING CLAUSES
Section 2.1. Assignment.
1. Borrower irrevocably, absolutely and not merely as additional security
for the payment and performance of the Obligations, sells, assigns,
sets over and delivers to Lender the following property, rights,
interests and estates owned or held by Borrower (the "Assigned
Property"), for Lender's uses and purposes as set forth in this
Assignment, subject to the license granted by Lender to Borrower in
this Assignment to collect and receive the Rents until an Event of
Default occurs:
1. all present and future leases, subleases, licenses and other agreements
relating to the use and occupancy of the Property (the "Leases"') ;
(b) the immediate and continuing right to collect and receive all present
and future rents, prepaid rents, percentage, participation or
contingent rents, issues, profits, proceeds, royalties, revenues,
parking fees, security deposits and other consideration under the
leases or otherwise derived from the use and occupancy of the Property,
including contributions to expenses by tenants, subtenants, licensees
and other occupants of the Property (the 'Tenants"), and all other
fees, charges, accounts, accounts receivable or payments payable to or
for the benefit of Borrower including liquidated damages following a
default under a Lease, the premium payable by a Tenant after the
cancellation of a Lease and the proceeds of rental insurance the
"Rents");
(c) all guarantees or other credit enhancements in connection with Tenants'
performance under any of the Leases; and
(d) all rights or causes of action that Borrower may have against any
Tenant.
(ii) Lender's acceptance of this Assignment, with all of the rights, powers,
privileges' and authority so created, will not, prior to Lender's entry
upon and taking possession of the Property, be deemed to constitute
Lender a mortgagee-in-possession, will not obligate Lender to appear in
or defend any action or proceeding relating to the Leases or to take
any action under this Agreement to expend any money or incur any
expenses, to perform or discharge any obligation, duty or obligation
under the Leases or to assume any obligation or responsibility for
security deposits or other deposits delivered to Borrower by any Tenant
and not delivered to Lender and Lender will not be liable for any
injury or damage to person or property sustained in or about the
Property.
ARTICLE III
OBLIGATIONS SECURED
Section 3.1. The Obligations. This Assignment secures the payment when
due, whether on the Maturity Date, Acceleration or
otherwise, of all amounts payable under the Loan Documents
(the "Monetary Obligations") and the timely performance of
all other obligations and covenants to be performed under
the Loan Documents (the "Nonmonetary Obligations").
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1. Representations and Warranties for Existing Leases.
(a) Borrower has delivered to Lender a. rent roll certified by Borrower and
prepared not more than 15 days before the date of this Assignment and
original certified copies of all of the Leases affecting the Property
as of the date of this Assignment (the "Existing Leases") and there are
no entities in occupancy of the Property except tenants ("Existing
Tenants") under the Existing Leases.
(b) All of the Existing Leases are in full force and effect and enforceable
in accordance with their terms with no defaults or matters that with
the passage of time or giving of notice would
constitute a default, there are no existing defenses or offsets to the
payment of Rent under the Existing Leases and Borrower has not
released, discounted or discharged any of the Existing Tenants from any
obligation under the Existing Leases including the payment of Rent.
(c) Each Existing Lease represents the entire agreement between the parties
to the Existing Lease as to the leasing of the respective leased
premises and has not been assigned or amended.
(d) All of the Existing Tenants are in occupancy, paying Rent and open and
conducting ''business in their respective leased premises.
(e) Borrower has complied with all obligations and satisfied all conditions
(including any co-tenancy requirements) under the Existing Leases which
Borrower as landlord must have complied with or satisfied on or before
the date of this Assignment.
(f) To Borrower's knowledge, the Existing Tenants are free from bankruptcy
and reorganization.
Section 4.2. Representations, Warranties and Covenants For Existing and
Future Leases.
(a) Borrower has not collected and will not collect Rents under the Leases,
excluding security deposits, more than one month in advance.
(b) Borrower is the landlord under the Leases, has the authority to assign
the Leases and the Rents and there is not and will not be any
assignment, pledge or mortgage of the Assigned Property other than
under the Loan Documents, except with Lender's prior consent which may
be, withheld on Lender's sole discretion.
(c) None of the Leases contains or will contain an option to purchase the
Property (including rights of first or last offer).
(d) Except as reflected in the rent roll delivered by Borrower to Lender,
none of the Leases contains or will contain obligations of Borrower as
landlord to pay any sum to a Tenant, to make any Tenant or capital
improvements (other than restoration after casualty or condemnation)
except for obligations which have been satisfied by Borrower prior to
the date of this Assignment or which specifically exclude Lender or
any, other purchaser in foreclosure from liability for such
obligations.
(e) None of the Leases contains or will contain any rights to set-off
against Rents.
(f) Except as reflected in the rent roll delivered by Borrower to Lender,
none of the Leases contains or will contain early termination or
cancellation rights (including those arising from a failure to meet
continuing co-tenancy requirements).
(g) Except as expressly permitted under Section 4.4 of this Agreement,
Borrower will not discount, compromise or discharge any of Tenants'
obligations under the Leases.
(h) None of the Leases includes or will include percentage or participation
rent that is based on net sales figures or net profit amounts.
(a) Borrower as landlord does not and will not have any obligations under
the Leases with respect to off-site improvements.
10) Borrower has deposited and will continue to deposit into a segregated
account. established at the Bank of Tampa Bank (the "Security Deposit
Account') all security deposits delivered to Borrower under the Leases.
11) None of the Leases limits or will limit the type or identity of tenant
to whom the landlord is permitted to lease or limits the use to which
another tenant may put its leased premises, except for limitations on
use generally affecting all Tenants.
12) None of the Tenants has or will have the right to receive or to direct
the use of Insurance Proceeds, except for proceeds of Tenants' own
insurance or to receive or direct the use of Condemnation Awards,
except for moving expenses and tenant fixtures costs.
13) Borrower will perform the landlord's obligations under the Leases and
will enforce the terms of the Leases to be performed by the Tenants.
14) Borrower has notified the tenants under all Existing Leases and will
notify the tenants under all leases executed after the date of this
Assignment that:
(1) the Mortgage is in existence;
(2) the leases and the Rents have been assigned to Lender;
(C) any security deposit made under the Leases have been assigned to,,
Lender and have been deposited in the Security Deposit Account.
Section 4.3. Covenants Regarding Future Leasing.
(A) Borrower will prepare annually a commercially reasonable leasing plan
(the "Leasing Plan") appropriate for a property of the type and
character of the property, including a marketing plan and projections
for rollovers, vacancies, leasing commission costs, tenant improvement
costs and other capital costs and Borrower will set aside appropriate
reserves in a segregated property account to provide for anticipated
costs, except to the extent set aside in reserve accounts established
as specifically required by the Mortgage.
(B) Borrower will lease the Property in .its reasonable discretion in
accordance with the Leasing Plan and may enter into new Leases and may
amend, renew or extend Leases without Lender's prior consent if the
following conditions are met:
(A) there is no Event of Default at the time the new lease, amendment,
renewal or extension is executed;
(B) the fixed minimum rent and other economic terms (including free rent
periods and other tenant concessions) of peach new lease, amendment,
renewal or extension are, in Borrower's reasonable business judgment,
at prevailing market terms for similar space in properties comparable
to the Property in the same geographic location;
(iii) each new lease is written on a Lender-approved form of lease without
material deviation, each renewal or extension is of a Lease written on
a Lender-approved form of lease without material deviation and each
amendment does not represent a material deviation from a Lender
approved form of lease or, if not the case, then the new lease,
amendment, renewal or extension, as the case may be, is submitted, to
Lender together with Lender's form of subordination, non-disturbance
and attornment agreement executed by Tenant;
4. each new lease represents less than 50% of the net rentable area of the
building affected by the new lease, represents less than 50% of the
gross revenues from the building and the tenant is not seeking a
subordination, non- disturbance and attornment agreement, on a form
other than Lender's approved form;
(v) Lender has not revoked Borrower's privilege of entering into hew leases
and amending, renewing or extending Leases without Lender's consent as
provided below;
(ii no lease amendment reduces the initial term of the Lease or any renewal
term of the Lease after the renewal has been exercised; and
(ii no lease amendment reduces the Rent except in connection with an
extension or renewal of the Lease that complies with the provisions of
this Section.
If the preceding conditions are not met,-Borrower may not enter into any new
lease or any amendment, renewal or extension of a Lease without Lender's
prior consent.
(c) Upon the occurrence of any of the following and after 60 days' prior
notice to Borrower, Lender may revoke Borrower's privilege to enter
into new leases and to amend, renew and extend Leases without Lender's
prior consent:
(i) if Lender sells or otherwise transfers the Loan Documents;
(ii if annual dross revenues from the Property are less than the aggregate
of annual Debt Service Payments, Impositions, Insurance Premiums and
operating expenses for the Property; and
(ii at any time in Lender's sole discretion.
(d) Borrower's privilege to enter into new leases and to amend, renew or
extend Leases without Lender's prior consent automatically terminates
upon the occurrence of an Event of Default.
(e) Not more than 30 days after execution of each new lease and each
amendment, renewal or extension of any Lease by Borrower and Tenant,
Borrower will deliver to Lender or Lender's designated servicer, an
original or 'a copy certified by Borrower, together with a reasonably
detailed lease abstract prepared by Borrower.
Section 4.4. Termination or Cancellation of Leases.
(a) Borrower may terminate or cancel any Lease or accept surrender of any
leased premises prior to the scheduled expiration date of the Lease in
its reasonable discretion and without Lender's prior consent., if the
following conditions are met:
(i) there is no Event of Default at the time of termination, cancellation
or surrender;
(ii) the term of the affected Lease will expire within six months, the tenant
is in default under the affected Lease for more than 60 days or Borrower
has determined in Borrower's reasonable business judgment that it is
more advantageous to the Property to terminate or cancel the affected
Lease;
(iii) the affected Lease represents less than 50% of the net rentable area of
the building affected by the Lease and represents less than 50% of the
gross revenues from the building; and
(iv Lender has, not revoked Borrower's privilege to terminate or cancel
Leases and accept surrender of leases premises as provided in this
Assignment.
If the preceding conditions are not met, Borrower will not terminate or
cancel any Lease or accept surrender of any leases premises prior to the
scheduled expiration date of the Lease without Lender's prior consent.
(b) Upon the occurrence of any of the following and after-60 days' prior
notice to Borrower, Lender may revoke Borrower's privilege to terminate
or ,cancel Leases and accept surrender of leased premises without
Lender's prior consent, as follows:
(i) if Lender sells or otherwise transfers the Loan Documents;
(ii) if annual gross revenues from the Property are less than the aggregate
of annual Debt Service Payments, Impositions, Insurance Premiums and
operating expenses for the Property; and
(ii at any time in Lender's sole discretion.
(c) Borrower's privilege to terminate or cancel Leases and accept surrender
of leased premises without Lender's prior consent automatically
terminates upon the occurrence of an Event of Default.
(d) If any Lease is terminated or canceled or leased premises surrendered,
Borrower will pay to Lender any termination, cancellation or surrender
fee paid by the Tenant after deducting
the costs of re-letting the affected space, including leasing
commissions and tenant improvements costs incurred by Borrower in
connection with the re-leasing. Lender will apply the payment received
from Borrower to such portion of the Monetary obligations as Lender may
elect in its sole discretion.
Section 4.5. Prohibition Against Net Rents. Borrower will not enter into
any lease or approve any sublease that provides for rent based in whole or in,
part on the income or profits derived from the premises leased or subleased
except for percentage rent based on gross (not net) receipts or sales.
Borrower will include in each non-residential lease and will require each
sublease to include:
(i) a prohibition against rent based in whole or in part on the income car
profits derived from the leased or subleased premises except for
percentage rent based on gross (not net) receipts or sales;
(ii a requirement that if Lender succeeds to the landlord's interests under
the Leases and is advised by its counsel that all or any portion of the
rent payable under any Lease' is or may be deemed to be unrelated
business income within the meaning of the Code or regulations issued
thereunder, Lender may elect to amend unilaterally the calculation of
rent so that none of the rent payable to Lender under the Lease will
constitute unrelated business income but the amendment will not
increase tenant's payment obligations or other liability under the
Lease or reduce the landlord's obligations under the Lease and
(ii a requirement that if Lender requests, the Tenant will be obligated to
execute any document Lender deems necessary to effect the amendment of
the Lease.
Any lease entered into after the date of this Assignment that does not
include the foregoing 'provisions will be absolutely void and ineffective as
a lease of any right to use or occupy space in the Property.
ARTICLE V
LICENSE TO COLLECT, AND APPLICATION OF, RENTS
Section 5.1. License to Collect Rents.
(a) Lender grants to Borrower a license to collect the Rents. Pursuant to
the license, Borrower will collect the Rents as they become due under
the leases, receiving and holding the Rents as a trust fund for the
benefit of Lender.
(b) Borrower will pply the Rents to (i) the payment of Impositions
(including making Accumulations Deposits), (ii) the payment. of
Insurance Premiums, (iii) the payment of the reasonable and customary
costs of operating, maintaining and leasing the Property as required by
the Loan Documents, (iv) the payment of Debt Service Payments and other
payments required under the Loan Documents and (v) maintenance of cash
reserves adequate to meet the projected costs of operation, maintaining
and leasing the Property from time to time in accordance with its
Permitted Use, including projected leasing costs, tenant improvement
costs, capital expenditures and reserves for replacements, before using
any of the Rents for any other purpose.
(c) Upon the occurrence of an Event of Default, Borrower's license to
collect the Rents will terminate automatically, provided that if
Borrower collects, any Rents after the occurrence of an Event of
Default and termination of the license, Borrower nevertheless will hold
such Rents as a trust fund for the benefit of Lender and will apply
such Rents only to the payments described in clauses (i) - (iv) in the
preceding subsection.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. Events of Default. It is an Event of Default under this
Assignment if:
(i) Borrower fails 'to pay any amount due, as and when required, under any
Loan Document and the failure continues for a period of 5 days provided
that if Borrower fails twice in any 12-month. period to pay any amount
due under any Loan Document, as and when required, then any additional
failure to pay any amount due, as and when required, will be an
immediate Event of Default without any grace period;
(ii there is a default in the performance of any other provision of any
Loan Document or if there is any inaccuracy or falsehood in any
representation or warranty contained in any Loan Document which is not
remedied within 30 days after Borrower receives notice thereof,
provided that if the default, inaccuracy or falsehood is of a nature
that it cannot be cured within the 30-day period and during that period
Borrower commences !to cure, and thereafter diligently continues to
cure, the default, inaccuracy or falsehood, then the 15-day period will
be extended for a reasonable period not to exceed 120 days after the
notice Borrower and
(ii an Event of Default occurs under any other Loan Document.
Section 6.2. Remedies. The license to collect Rents described in this
Assignment automatically terminates upon the occurrence of an Event of Default
and Lender may take any of the following actions without notice to Borrower
(the "Assignment Remedies"):
(i) exercise any of the Remedies;
(ii directly or through a receiver of the Property appointed by a court of
competent jurisdiction:
(A) take possession and control of the Property;
(B) manage end operate the Property;
(C) require Borrower to deliver to Lender or the receiver all security
deposits, the Books and Records and all original counterparts of the
leases;
(D) collect, sue for and give receipts for the Rents and, after paying
all expenses of collection, including receiver's, broker's and
attorney's fees, apply the net collections to the operation,
management and leasing of the Property and thereafter as provided in
the Loan Documents;
(E) make, modify, enforce, terminate or accept surrender of Leases and
evict tenants;
(F) appear in and defend any Proceeding brought in connection with the
Property and bring any Proceeding in the name and on behalf of
Borrower, that Lender, in its sole discretion, determines should be
brought to protect the Property or Lender's interest in the Property;
and
(G) perform any act in the place of Borrower that Lender or the receiver
deems necessary to preserve the value, marketability or rentability of
the Property, to increase the gross receipts from the Property or to
protect Lender's interest in the Property.
Section 6.3. General Provisions Pertaining to Remedies.
(a) The Assignment Remedies are cumulative and may be pursued concurrently
or otherwise, at such time and in such order as Lender may determine in
its sole discretion and without presentment, demand, protest or further
notice of any kind, all of which are expressly waived by Borrower.
(b) The enumeration in the Loan Documents of specific rights or powers will
not be construed to limit any general rights or powers or impair
Lender's', rights with respect to the Assignment Remedies.
(c) If Lender exercises any of the Assignment Remedies, Lender will not be
deemed a mortgagee-in-possession.
(d) Lender will not be liable for any act or omission of Lender in
connection with the exercise of the Assignment Remedies.
(e) Lender's right to exercise any Remedy will not -beimpaired by Lender'
s delay in exercising or failure to exercise the Assignment Remedies
and will not be construed as extending any cure period or constitute a
waiver of the default or Event of Default.
(f) If an Event ok Default occurs, Lender's payment or performance or
acceptance of payment or performance will not be deemed a waiver or
cure of the Event of Default.
(g) Lender's acceptance of partial payment will not extend or affect any
grace period or constitute a waiver of a default or Event of Default
but will be credited against the unpaid Monetary Obligations.
(h) If Lender or the receiver exercises any of the Assignment Remedies,
such action will not cure or waive any default, will not waive, modify
or affect any notice of default under the Loan Documents and will not
invalidate any act done pursuant to a notice of default under the Loan
Documents. Once Lender exercises the Assignment Remedies, Lender's
enforcement will continue for so long as Lender elects, notwithstanding
that the collection and application of the Rents may have cured the
original default. If Lender elects to discontinue the exercise of the
Assignment Remedies, the Assignment Remedies may be reasserted at any
time and from time to time following a subsequent Event of Default.
(i) A demand by Lend or the receiver on any Tenant to pay the Rents to
Lender or the receiver by reason of an Event of Default will be
sufficient notice to the Tenant to make future payments of Rents to
Lender or the receiver without the necessity for consent by Borrower.
Section 6.4. Payment of Expenses.
(a) Borrower is obligated to pay all expenses incurred by Lender or the
receiver or that are otherwise payable in connection with this
Assignment, or the Leases and the Rents, including expenses relating to
(i) any Proceeding or other claim asserted against Lender and (ii) the
preservation of Lender's security and the exercise of any Assignment
Remedies.
Section 6.5. Duty to Defend. If Lender or any of its trustees, officers,
participants, employees or affiliates is a party in any Proceeding relating
to this Assignment or the Leases and the Rents, Borrower will defend and hold
harmless the party with attorneys and other Professionals retained by
Borrower and approved by Lender. At is option, Lender may engage its own
attorneys and other professionals, at Borrower's expense, to defend or assist
the party. In' either event, the Proceeding will be controlled by Lender.
Section 6.6. Attorney-In-Fact. Borrower appoints Lender as Borrower's
attorney-in-fact to perform, at Lender's election, any actions and to execute
and record any instruments necessary to effectuate-the actions described in
this Section, in each instance only at Lender's election and only to the
extent Borrower has failed to comply with the provisions of this Section.
ARTICLE VII
LIMITATION OF LIABILITY
This Assignment is subject to the limitations on liability set forth in the
Article of the Mortgage entitled "Limitation of Liability".
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Mortgage Provisions Incorporated. The provisions of the
Articles of the Mortgage entitled, "Waivers", "Notices" and "Miscellaneous"
are applicable to this Assignment and are deemed incorporated by reference as
if set forth at length.
IN WITNESS WHEREOF, this Assignment has been duly executed by the Borrower
the day and year first above written.
ABR SPECTRUM, LTD., a Florida
WITNESSES: By: Robert M. Reed, II
as Managing General Partner
STATE OF FLORIDA COUNTY OF COLLIER
The foregoing instrument was sworn to and acknowledged before me this 28th day
of June, 1997, by Robert M. Reed II, as Managing General Partner of ABR,
SPECTRUM, LTD., a Florida limited partnership, who is personally known to me.
NOTARY PUBLIC (SEAL)
My Commission Expires: (Print name below)
Notary Public Serial # (if any)
EXHIBIT "A"
A part of Tract 9, MAITLAND CENTER SECTION THREE, Maitland, Orange County,
Florida, according to the plat thereof as recorded in Plat Book 10, page 10,
public records of Orange County, Florida, more particularly described as
follows:
Begin at the Southwest corner of SUN BAY CLUB UNIT I, as shown on the plat
thereof as recorded in Condominium Plat Book 7, pages 70 through 87,,public
records of orange county, Florida; thence North 89 deg 56'05" East along the
South boundary of said SUN BAY CLUB UNIT I a distance of 42.00 feet; thence
South 78deg. 03'55" East a distance of .200.00 feet; thence South 28 deg.
22'30" East a distance of 44.11 feet; thence South 69 deg. 12'28" East a
distance of 153.22 feet to the Southeast corner of Tract 9; thence South 64
deg. 33'33" West a distance of 1057.07 feet to a point on the West boundary
of Tract, said point being on a curve concave Southwesterly, a radial line to
said point bearing South 88 deg.23'40" East, thence Northerly along said West
boundary, along the arc of said curve; having a radius of 709.07 feet,
through a central angle of 18 deg. 47'19" a distance of 232.52 feet to a point
of reverse curvature of a curve concave Easterly, thence Northerly along said
West boundary of Tract 9, along the arc of said curve having a radius of
639.01 feet, through a central angle of 33';deg. 05'55" a distance of 369.18
feet to a point of reverse curvature of a curve concave Westerly, thence
Northerly along said West boundary of Tract 9, along the, are of said curve
having a radius of 709.07 feet, through a central angle of 15, deg. 58'50" a
distance of 197.77 feet to a point of tangency; thence North OOU03'55" West
along said West boundary of Tract 9, a distance of 12.97 feet to the Point of
Beginning.
EXHIBIT NUMBER 10.65
ESCROW AGREEMENT
This Escrow Agreement is made and entered into effective this
30th day of July, 2002, by and between ABR SPECTRUM, LTD., a
Florida limited partnership, hereinafter referred to as "Seller";
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP, a
Wisconsin limited partnership, hereinafter referred to as
"Buyer"; and FOWLER WHITE BOGGS BANKER, P.A., hereinafter
referred to as "Escrow Agent."
WITNESSETH:
WHEREAS, Seller is the owner and holder of the premises legally
described on Exhibit A attached hereto and incorporated herein by
virtue of this reference (the "Premises").
WHEREAS, Seller has contracted to sell, and Buyer has contracted
to purchase, the Premises.
WHEREAS, Seller has agreed to pay certain monies for repairing
sinkholes on the Premises, in accordance with the terms of this
Agreement;
NOW, THEREFORE, in consideration of mutual premises contained,
and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto do hereby agree as
follows:
1. The above captioned recitals are true and correct.
2. Buyer and Seller do hereby agree that at the closing of the
transaction contemplated herein, Seller shall deliver to
Escrow Agent the amount of $62,000.00, to be held in escrow
by the Escrow Agent, for the benefit of both Buyer and
Seller. Said escrow monies shall be disbursed as follows:
a. Escrow Agent shall disburse funds to contractors either
as advanced deposits, or following completion of the
work, for work performed or labor supplied in the
repair of said sinkholes. Repair of said sinkhole
damage shall be completed no later than November 30,
2002; provided, however, this date may be extended by
Acts of God, strikes, lack of materials, or other
matters outside the control of Seller.
b. In the event that there are not sufficient funds held
by Escrow Agent to pay for the cost of all obligations
incurred by Seller hereunder, Seller shall be
responsible for paying said difference; in the event
the escrowed funds exceed the amount necessary to pay
for said repairs, Escrow Agent shall return said excess
to Seller.
c. Seller does hereby agree that all of Seller's
obligations hereunder shall be performed in a good and
workmanlike manner, by properly licensed and insured
contractors. Seller does hereby further agree that
Seller shall obtain a final release of lien in
recordable form from each contractor as said contractor
completes their work.
3. In the event that any litigation is instituted to enforce or
interpret the terms of this Agreement, the parties agree
that the exclusive forum thereof shall be the Circuit Courts
of Orange County, Florida. In the event of said litigation,
the prevailing party shall be entitled to reimbursement from
the other for all reasonable attorneys' fees and costs
incurred, including but not limited to those incurred
incident to any appeal.
4. Escrow Agent undertakes to perform only such duties as are
expressly set forth herein and no other obligations shall be
read into this Agreement against Escrow Agent.
5. Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to
be genuine, may assume the validity and accuracy of any
statement or assertion contained in such writing or
instrument, and may assume that any person purporting to
give any writing, or notice, advise, or instructions in
connection with the provisions hereof has been duly
authorized to do so. Escrow Agent shall not be liable in
any manner for the sufficiency or correctness as to form,
manner and execution, or validity of any instrument
deposited in this escrow, nor as to the identity, authority
or right of any person executing the same; and its duties
hereunder shall be limited to the safekeeping of such
certificates, monies, instruments, or other documents
received by it as such Escrow Agent, and for the disposition
of the same in accordance with the written instruments
accepted by it in the escrow.
6. If the parties shall be in disagreement about the
interpretation of this Agreement, or rights or obligations
hereunder, or the propriety of any action contemplated by
Escrow Agent hereunder, Escrow Agent may, in its sole
discretion, file an action in interpleader to resolve said
disagreement.
7. Escrow Agent may resign upon ten (10) days' advance written
notice to the parties to this Agreement. If a successor
Escrow Agent is not appointed within said ten (10)-day
period, Escrow Agent may petition any court or competent
jurisdiction to name a successor.
8. The rights created by this Agreement shall inure to the
benefit of and the obligations created hereby shall be
binding upon the parties hereto, their successor and
assigns.
SELLER:
ABR SPECTRUM, LTD., a Florida limited
partnership
By: (Corporate Seal)
REED DEVELOPMENT COMPANY,
a Florida corporation, as
General Partner
By: /s/ Robert M. Reed
Robert M. Reed, II, President
BUYER:
DECADE COMPANIES INCOME
PROPERTIES, A LIMITED PARTNERSHIP, a
Wisconsin limited partnership
By: Decade Companies, General Partner,
a Wisconsin general partnership
By: (Corporate Seal)
Decade 80, Inc., a Wisconsin
corporation, as General Partner of
Decade Companies
By: /s/ Jeffrey Keierleber
Jeffrey Keierleber, President
By: /s/ Jeffrey Keierleber
Jeffrey Keierleber, as General Partner
of Decade Companies
ESCROW AGENT:
(Corporate Seal)
FOWLER WHITE BOGGS BANKER, P.A.
By: /s/ Illegible, as General Partner
EXHIBIT A
LEGAL DESCRIPTION: PARCEL 1
EXHIBIT B
LEGAL DESCRIPTION
SPECTRUM PROPERTY
A part of Tract 9, MAITLAND CENTER SECTION THREE, Maitland,
Orange County, Florida, according to the plat thereof as recorded
in Plat Book 10, Page 10, Public Records of Orange County,
Florida, more particularly described as follows:
BEGIN at the Southwest corner of SUN BAY CLUB UNIT I, as shown on
the plat thereof as recorded In Condominium Plat Book 7, Pages 74
through 87, Public Records of Orange County, Florida; THENCE
North 69Section56'05" East along the South boundary of said SUN BAY
CLUB UNIT I a distance of 42.00 feet-, THENCE South 78Section03'55"
East a distance of 200.00 feet; THENCE South 28Section22'30" East a
distance of 44.11 feet; THENCE South 69Section12'28" East a distance of
753.22 feet to the Southeast comer of Tract 9; THENCE South
64Section33'33" West a distance of 1057.07 feet to a point on the West
boundary of Tract 9, said point being on a curve concave
Southwesterly, a radial line to said point bearing South
88Section23'40" East; THENCE Northerly along said West boundary, along
the arc of said curve, having a radius of 709.07 feet, through a
central angle of 18Section47`19" a distance of 232.52 feet to a point
of reverse curvature of a curve concave Easterly; THENCE
Northerly along said West boundary of Tract 9, along the arc of
said curve having a radius of 639.07 feet, through a central
angle of 33Section05'55" a distance of 3$9.1$ feet to a point of
reverse curvature of a curve concave Westerly; THENCE Northerly
along said West boundary of Tract 8, along the arc of said curve
having a radius of 709.07 feet, through a central angle of
15Section58'60" a distance of 197.77 feet to a point of tangency;
THENCE North 00Section03'55" West along said West boundary of Tract 9,
a distance of 12.97 feet to the point of beginning.
EXHIBIT C
This instrument prepared by and
after recording return to:
Leo J. Salvatori, Esq.
Quarles & Brady LLP
4501 Tamiami Trail N., Ste, 300
Naples, FL 34103
PARTIAL RELEASE OF MORTGAGE
Know All Men By These Presents:
WHEREAS, ASR PLYMOUTH PLAZA, LTD, and ABR SPECTRUM, LTD, both
entities being Florida limited partnerships, hereinafter referred
to as "Mortgagor", executed an 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, and other collateral loan
documents (hereinafter referred to as "Loan Documents"') in favor
of TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New
York corporation, hereinafter referred to as "Mortgagee", bated
July 1, 1997, and recorded July 21, 1997, In Official Records
Book 5294, Page 912, of the Public Records of Orange County,
Florida; and recorded July 29, 1997, In Official Records Book
9788, Page 638, of the Public Records of Pinellas County,
Florida, encumbering the premises therein described, in the
original principal sum of TEN MILLION EIGHT HUNDRED FIFTY
THOUSAND DOLLARS ($10,850,000.00), with interest as therein
mentioned: and
WHEREAS, on October 30, 1992 ABR Spectrum, Ltd., a Florida
limited partnership ("Spectrum"), executed and delivered to First
Union National Bank of Florida, a national banking association
("First Union"), that certain Real Estate Promissory Note in the
original principal amount of Eight Million Forty-Eight Thousand
and No/100 Dollars (68,048,000,00) ("First Union Note"), which
First Union Note was secured by that certain Mortgage and
Security Agreement dated October 30, 1992 and recorded November
4, 1992 in Official Records Book 4483 at Page 2903 of the
Official Records of Orange County, Florida ("First Union
Mortgage"); and
WHEREAS, the First Union Note was further secured by that certain
Assignment of Leases and Rents dated October 30, 1992 land
recorded November 4, 1992 In Official Records Book 4483 at Page
2928 of the Official Records of Orange County, Florida ("First
Union Assignment"); and
WHEREAS, on November 23, 1992 ABR Plymouth Plaza, Ltd., a Florida
limited partnership ("Plymouth"), executed and delivered to The
Chase Manhattan Bank, N.A., a national banking association
("Chase") that certain Promissory Note in the original principal
amount of Two Million Eight Hundred Ninety-Six Thousand and
No/100 Dollars ($2,896,000.00) ("Chase Note"), which Chase Note
was secured by that certain Mortgage Deed and Security Agreement
dated November 23, 1992 and recorded In Official Records Book
8108 at Page 2182 of the Official Records of Pinellas County,
Florida ("Chase Mortgage"); and
WHEREAS, the Chase Note was further secured by that certain
Collateral Assignment of Leases, Rents and Contract Rights dated
November 23, 1992 and recorded in Official Records Book 8108 at
Page 2202 of the Official Records of Pinellas County, Florida
("Chase Assignment"), and
WHEREAS, First Union assigned, transferred and set over the First
Union Note, First Union Mortgage and First Union Assignment to
Teachers Insurance and Annuity Association of America, a New York
corporation, by virtue of that certain Assignment of Note and
Mortgage dated July 1, 1997 ("Assignment of First Union Note and
Mortgage") and that certain Assignment of First Union Assignment,
dated July 1, 1997 ("Assignment of First Union Assignment") and
recorded in Official Records Book 5294 at Page 908 of the Public
Records of Orange County, Florida; and
WHEREAS, Chase assigned, transferred and set over the Chase Note,
Chase Mortgage and Chase Assignment to Lennar Northeast Partners
Limited Partnership ("Lennar"), a Delaware limited partnership,
by virtue of that Assignment of Mortgage and other Loan Documents
dated November 3, 1994 and recorded in Official Records Book
8909, Page 683 of the Public Records of Pinellas County, Florida;
and
WHEREAS, Lennar assigned, transferred and set over the Chase
Note, Chase Mortgage and Chase Assignment to Bank Midwest, N.A.,
a national banking association ("Bank Midwest"), by virtue of
that certain Assignment of Mortgage and other Loan Documents
dated October 31, 1995 and recorded in Official Records Book
9155, Page 612 of the Public Records of Pinellas County, Florida;
and
WHEREAS, Bank Midwest assigned, transferred and set over the
Chase Note, Chase Mortgage and Chase Assignment to Teachers by
virtue of that certain Assignment of Note and Mortgage, dated
June 30, 1997 ("Assignment of Chase Note and Mortgage") and that
certain assignment of Chase Assignment dated June 30, 1997
("Assignment of Chase Assignment") and recorded in Official
Records Book 9788, Page 831 of the Public Records of Pinellas
County, Florida; and
WHEREAS, said Loan Documents have bean assigned by Mortgagee to
Decade Mortgage Loan Partners, LLC, a Wisconsin limited liability
company; and
WHEREAS, the said Mortgagor, has requested the said Mortgagee to
release the premises hereinafter described, being part of said
mortgaged premises, from the lien and operation of said Mortgage
and collateral Loan Documents.
NOW THEREFORE, KNOW YE, that the said Decade, in consideration of
the premises and of the sum of TEN and 00/100 DOLLARS ($10.00),
to Decade in hand paid by, or on behalf of, Mortgagor at the time
of the execution hereof, the receipt whereof is hereby
acknowledged, do remise, release, quit-claim, exonerate and
discharge from the lien and operation of said Mortgage and all
other collateral loan documents unto the said Mortgagor, its
heirs and assigns, that certain portion of the premises conveyed
by said Mortgage, more particularly described as follows:
See Exhibit A attached hereto and incorporated herein by virtue
of this reference.
This partial release will also serve to release the premises
described above, together with any personal property or fixtures
located on or within the same, from the lien and charge of that
certain Assignment of Leases and Rents recorded in Official
Records Book 9788, Page 928, of the Public Records of Pinellas
County, Florida, and from the lien and charge of that certain
UCC-1 Financing Statement recorded in Official Records Book 8108,
Page 2214, of the Public Records of Pinellas County, Florida, as
assigned by document recorded in Official Records Book 9788, Page
837 of the Public Records of Pinellas County, Florida; and from
the lien and charge of that certain UCC-1 Financing Statement
recorded in Official Records Book 9788, Page 944, of the Public
Records of Pinellas County, Florida.
TO HAVE AND TO HOLD the same, with the appurtenances, unto the
said Mortgagor, its heirs and assigns forever, freed, exonerated
and discharged of and from the lien of said Mortgage, and every
part thereof; provided always, nevertheless, that nothing herein
contained shall in anywise impair, alter or diminish the effect,
lien or encumbrance of the aforesaid Mortgage on the remaining
part of said mortgaged premises, not hereby released therefrom,
or any of the rights and remedies of the holders thereof.
IN WITNESS WHEREOF, the said Mortgagee has hereunto set its hand
and seal this day of September, 2002.
Signed, sealed and delivered in (Corporate Seal)
the presence of: DECADE MORTGAGE LOAN PARTNERS, LLC, a
Wisconsin limited
/s/ Nan Gregory liability company
Witness No. 1 Signature
Nan Gregory
Witness No. 1 Printed Name By: /s/ Jeff Keieleber
Jeff Keieleber
/s/ Patsy E. Trusal as Manager
Witness No. 2 Signature
Patsy E. Trusal
Witness No. 2 Printed Name
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this
13th day of September, 2002, by Jeffrey Keieleber as General
Manager of Decade Mortgage Loan Partners, LLC, a Wisconsin
limited liability company, who is personally known to me.
Nan Gregory /s/ Nan Gregory
My Commission DD084587 NOTARY PUBLIC
Expires August 01, 2005
Nan Gregory
TYPED, PRINTED OR STAMPED NAME OF NOTARY
My commission expires:
EXHIBIT D
GENERAL RELEASE
KNOW ALL MEN BY THESE PRESENTS:
THAT DECADE MORTGAGE LOAN PARTNERS, LLC, a Wisconsin limited
liability company, first party, for and in consideration of the
sum of Ten Dollars ($10.00), and other valuable consideration,
received from or on behalf of ABR PLYMOUTH PLAZA, LTD., ABR
SPECTRUM, LTD., REED DEVELOPMENT COMPANY, ROBERT M. REED, II,
THOMAS E. BEACH and DAVID R. ATKINSON, as well as all employees,
officers, directors, partners, agents and independent contractors
thereof, all hereinafter referred to as second party, the receipt
whereof is hereby acknowledged.
HEREBY remise, release, acquit, satisfy, and forever discharge
the said second party, from any and all liability created under
any document held by the undersigned as a result of the
assignment of the same to the undersigned by Teachers Insurance
and Annuity Association of America.
IN WITNESS WHEREOF, the undersigned has set their hand and seal
this 13th day of September, 2002.
Signed, sealed and delivered in
the presence of: DECADE MORTGAGE LOAN PARTNERS, LLC, a
Wisconsin limited
/s/ Nan Gregory liability company
Witness No. 1 Signature
Nan Gregory
Witness No. 1 Printed Name By: /s/ Jeff Keieleber
Jeff Keieleber
/s/ Patsy E. Trusal as General Manager
Witness No. 2 Signature
Patsy E. Trusal
Witness No. 2 Printed Name
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this
13th day of September, 2002, by Jeffrey Keieleber as General
Manager of Decade Mortgage Loan Partners, LLC, a Wisconsin
limited liability company, who is personally known by me or who
has produced as identification.
Nan Gregory /s/ Nan Gregory
My Commission DD084587 NOTARY PUBLIC
Expires August 01, 2005
Nan Gregory
TYPED, PRINTED OR STAMPED NAME OF NOTARY
My commission expires: