EXHIBIT 10.9
THIS INSTRUMENT PREPARED BY:
David B. Punzak, Esq.
CARLTON, FIELDS, WARD, EMMANUEL,
SMITH & CUTLER, P.A.
P.O. Box 2861
St. Petersburg, Florida 33731
MORTGAGE
THIS MORTGAGE is executed this _____ day of May, 1996, by
DECADE COMPANIES INCOME PROPERTIES - A LIMITED PARTNERSHIP, a
Wisconsin limited partnership authorized to do business in the
State of Florida (the "Borrower"), in favor of REPUBLIC BANK, a
Florida banking corporation (the "Lender"), and is made in
reference to the following facts:
(A) On or about the date hereof, the Lender has made a loan
to the Borrower in the original principal amount of SIX MILLION
SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS ($6,700,000.00) (the
"Loan"). The Loan is evidenced by a promissory note, which will
sometimes be referred to herein as the "Note," the terms and
provisions of which are incorporated in and made a part hereof.
The Note bears interest at the rate stated therein, provides for
payments of principal and interest in the manner stated therein,
and has a maturity date of seven (7) years from the date hereof.
(B) Lender is desirous of securing the prompt payment of
the Note, and any additional indebtedness accruing to the Lender
on account of any future payments, advances, or expenditures made
by the Lender or on account of any other indebtedness incurred in
connection with this Mortgage or any other instrument securing
the Note as set forth herein.
NOW, THEREFORE, for and in consideration of Lender making
the aforesaid Loan to Borrower and for other good and valuable
consideration, and to secure the payment of the aforesaid
indebtedness, the Borrower does hereby grant, bargain, sell,
alien, remise, convey and confirm unto the Lender all that
certain land, and all structures, buildings and improvements
thereon, of which Borrower is now seized and in possession,
situate in Pinellas County, Florida, more particularly described
in Exhibit "A" attached hereto and by this reference made a part
hereof.
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances and all structures, buildings and improvements
of every kind and description now or hereafter on said land, and
all heretofore or hereafter vacated alleys and streets abutting
the said land, and all riparian and littoral rights, easements,
rents, royalties, mineral, oil and gas rights and profits, water,
water rights and water stock appurtenant to the said land, and
Borrower's interest in all fixtures, machinery, equipment,
building materials, appliances and goods of every nature
whatsoever now or hereafter located in, or on, or used, or
intended to be used in connection with the said land,
improvements and appurtenances including, but not limited to
those for the purposes of supplying or distributing heating,
cooking, electricity, gas, water, air and light; and all
elevators and related machinery and equipment, plumbing, bath
tubs, water heaters, sinks, and other plumbing fixtures, ranges,
stoves, refrigerators, dishwashers, disposals, washers, dryers,
awnings, storm windows, storm doors, screens, blinds, shades,
curtains, carpet, attached floor covering, furniture, antennae,
trees and plants, all of which including replacements and
additions thereto, shall be deemed to be and remain a part of the
real property covered by the Mortgage.
FURTHER TOGETHER WITH all rents, issues, income, profits and
all accounts receivable generated through the use by Borrower or
others of the real or personal property encumbered by this Mort-
gage, including any such rents, issues, income, profits and all
accounts receivable of any business activity conducted by
Borrower on or through the use of such property; and the proceeds
of all of the foregoing.
All of the above described property and interests will
sometimes be referred to herein as the "Property."
TO HAVE AND TO HOLD the Property unto the Lender and its
successors and assigns forever.
The Borrower hereby covenants and agrees with and warrants
to the Lender as follows: (i) that the Borrower is the absolute
fee simple owner of the Property excepting leased items, if any,
disclosed in a Lien Affidavit (the "Affidavit") executed by
Borrower and presented to Lender on even date herewith; (ii) that
the Property is and will remain free and clear of all
encumbrances excepting covenants, restrictions, easements and
reservations disclosed in a Lender title insurance binder as
endorsed, described in the Affidavit, except as permitted by this
Mortgage; (iii) that Borrower has full power and lawful right to
mortgage and convey the Property; (iv) that no delinquency exists
with respect to the payment of any taxes, assessments, water or
sewer charges or other governmental impositions of any kind
levied or assessed on the Property; (v) that it shall be lawful
for the Lender at all times to peacefully enter upon, hold,
occupy and enjoy the Property and every part thereof; (vi) that
Borrower will make such further assurances to protect the fee
simple title to the Property in the Lender as may be reasonably
required; and (vii) that Borrower does hereby fully warrant the
title to the Property and will defend the same against the lawful
claims of all persons whomsoever.
And the Borrower does hereby further covenant and agree with
and promise to the Lender as follows:
1. Payment. Borrower shall strictly and fully comply with
all provisions of this Mortgage and of the Note secured hereby
and with the provisions of any other instrument securing the
Note. Borrower shall promptly pay Lender all sums of money
evidenced by the Note as well as all sums of money required by
this Mortgage and in any other instrument securing the Note, on
the days, respectively, the same severally become due.
2. Escrow for Taxes. The Lender may require at any time
that escrow payments as to taxes and assessments be paid to it by
the Borrower, during the term of this Mortgage. In such event,
the Borrower shall pay to Lender, to the extent requested by the
Lender, on dates upon which interest is payable or as otherwise
directed by the Lender such amounts as Lender from time to time
estimates is necessary to create and maintain a reserve fund from
which to pay, before the same become due, all taxes and govern-
mental assessments relating to the Property and as additional
security for the debt secured by this Mortgage. Said payments
may be, at the discretion of the Lender, a monthly sum and amount
equal to one-twelfth (1/12) of the estimated annual taxes and
assessments upon the Property, as the amount thereof is
reasonably determined from time to time by Lender. In the event
such monthly escrow payments are insufficient to pay for said
taxes and assessments when due, Lender may demand of Borrower
that the amount of such payments be increased and/or Lender may
demand that the difference be paid to it by the Borrower, and
Borrower shall immediately comply with such demands. Interest
shall be due to Borrower on such deposits. Payments from said
reserve fund for said purposes may be made by the Lender at its
discretion even though subsequent owners of the Property
described herein may benefit thereby. In the event of any
default under this Mortgage which is not cured within the
curative period set forth herein Lender at its discretion and
option may apply all or any part of said reserve fund to the
indebtedness hereby secured. In refunding any part of said
reserve fund, the Lender may deal with whomsoever is represented
to be the owner of the Property at that time. Provided however,
at all times during the term of this Mortgage: (i) Borrower
shall provide to Lender documentary evidence that all insurances
required by this Mortgage have been prepaid (within fifteen (15)
days of the prepayment of the same); and (ii) Lender shall permit
Borrower to obtain the maximum possible discount for payment of
the taxes on the Property.
3. Taxes. Borrower shall, during the term of this
Mortgage, pay all taxes, assessments and encumbrances of every
nature that may for any and all purposes be payable, assessed or
imposed on the Property, or any part thereof, or the income
therefrom, and upon this Mortgage and the Note, or the money
secured and evidenced thereby, and shall pay them before the
delinquency thereof and receipts evidencing payment of said
taxes, assessments, levies and encumbrances if requested by
Lender, shall be deposited with the Lender on or before February
28th of each succeeding year during the term of this Mortgage.
Lender shall be the sole judge of any such tax, assessment, water
rent, claim, lien or encumbrance and of the amount necessary to
be paid in satisfaction thereof. Notwithstanding anything
contained in paragraph 2 hereof or this paragraph 3 to the
contrary, Borrower shall have the right to contest any tax or
assessment made on the Property, provided that: (a) Borrower
shall notify Lender in writing prior to September 30 of the year
that the taxes or assessments are contested (so as to be received
by the Lender prior to such date) of such contest, specifying the
factual and legal basis for such contest; (b) the contest made by
the Borrower is made in good faith and is diligently and continu-
ously contested so as to resolve the contest in a reasonable
period of time; (c) the amount of taxes or assessments required
by Florida law to be deposited with the appropriate governmental
authority or agency is deposited with such authority or agency
within the period required by law; and (d) at the same time the
difference between the amount of taxes or assessments imposed and
the amount deposited with the governmental authority or agency
under subparagraph (c) next above is deposited in escrow with the
Lender so as to be subject to the terms of this Mortgage,
including the disposition of escrow monies following a default
hereunder which is not cured within the applicable grace period.
In the event that all of the above provisions are not fully and
strictly complied with within the period stated and taxes or
assessments are not otherwise paid as required by this paragraph
3, such shall constitute a default under this Mortgage.
4. Insurance.
(a) Borrower shall keep the buildings and other
improvements, which are now, or which hereafter may be erected on
the Property, including any personal property and fixtures
described above, constantly insured against loss by fire with
extended coverage in a sum not less than full insurable value so
as to avoid any claim on the part of the insurers for co-
insurance, and in addition shall keep in full force and effect
policies of insurance insuring against such other hazards,
casualties, and contingencies as Lender may reasonably require,
including, but not limited to, Flood Insurance on any buildings
located in flood hazard area, Property Damage Insurance and
Public Liability Insurance. All insurance required by Lender
hereunder shall be on such forms, for such periods, and in such
amounts as Lender may reasonably require with loss payable to the
Lender under a clause acceptable to Lender in its sole discretion
(which shall include a minimum of thirty (30) days advance notice
of cancellation of such insurances). Borrower shall deliver the
policy, or policies, to the Lender, as additional security, and
where renewal policies are necessary in the performance of this
covenant to deliver them at least thirty (30) days before the
expiration of the existing insurance. In the event such policy
or policies are a part of a master policy insuring properties in
addition to the Property, then Borrower may submit to Lender a
certified copy of such policy together with the original loss
payable endorsement in lieu of the original policy as set forth
above. The right to any return premiums on any insurance
policies covered by this Mortgage is hereby assigned to Lender as
further security for the Note secured hereby.
(b) In the event of loss, the Borrower shall give
immediate notice by mail to the Lender; and in the event Borrower
shall fail to agree with the insurance companies involved as to
the amount and terms of any loss within ninety (90) days of the
happening of such loss, then the Lender may negotiate with and
settle said loss with such insurance companies and neither the
Lender nor the insurance companies involved shall, upon such
settlement being made, be liable in any manner to the Borrower.
(c) If Borrower elects to restore by giving Lender
notice of such election within thirty (30) days following such
damage occurring, the Lender shall permit any funds received from
insurance policies to be used in restoring the Property, provided
that such proceeds, together with any other funds available for
such purposes, including funds to be made available by Borrower,
are sufficient to restore the casualty. The Lender shall make
the insurance proceeds available to Borrower in an amount
corresponding to the progress of the work performed and based
upon amounts certified to Lender by a qualified licensed
architect or engineer who is reasonably acceptable to Lender.
Provided however, Lender may require that all funds necessary
above the insurance proceeds for restoration be first used, and
that any amounts disbursed be solely for in-place and installed
materials and services, that Borrower comply with Chapter 713,
Florida Statutes, and that all contractors, contracts, plans and
specifications and the concept for restoration be first approved
in writing by Lender, which approval shall not be unreasonably
withheld. Provided further however, that if Borrower is in
default under this Mortgage or if Borrower does not elect to
restore the premises within the period provided or if there are
insufficient funds for restoration as aforesaid, then
notwithstanding anything contained in this paragraph to the
contrary, Lender shall have the right to apply the insurance
proceeds to reduce the balance of the Mortgage indebtedness. Any
insurance proceeds payable to Lender hereunder shall be retained
by Lender in an interest bearing money market account pledged by
Borrower to Lender.
5. Condemnation.
(a) In the event the Borrower is served with process
or otherwise notified of a condemnation action or any other
action which involves a taking of the Property or any part
thereof, the Borrower shall notify the Lender in writing of such
within five (5) days from the date of service of process or such
other notification (so as to be received by the Lender within
said period). In the event Borrower fails to promptly,
diligently, continuously and completely pursue the condemnation
action to completion, then Borrower authorizes Lender as
attorney-in-fact for Borrower to, at Lender's option, commence,
appear in and prosecute, in Lender's or Borrower's name, any
action or proceeding relating to such taking of the Property and
to settle or compromise any claim in connection with such
condemnation or taking. The proceeds of any award or claim for
damages, direct or consequential, in connection with any
condemnation or other taking of the Property, or any part
thereof, or for conveyance in lieu of condemnation, are hereby
assigned and shall be paid to Lender. Lender shall not be held
responsible for any failure to collect any award or awards,
regardless of the cause of such failure.
(b) In the event all or a substantial portion of the
Property is condemned (and as to a substantial portion, with the
remaining portion not being capable of being restored to its ori-
ginal functioning entity), then any such award or awards received
by the Lender may, at its option, be used in restoring the
Property on terms and conditions acceptable to and prescribed by
the Lender (and in which event the funds shall be retained in an
interest bearing money market account pledged by Borrower to
Lender), or be applied as a credit on any portion of the
indebtedness or sums secured hereby, whether then matured or
subsequently to mature (provided that such does not exceed the
amount necessary to pay in full all indebtednesses secured by
this Mortgage and all other instruments securing the Note). Any
excess condemnation award that remains following either
restoration of the Property or payment of the Loan in full under
this subsection (b) or subsection (c) below shall be released to
the Borrower.
(c) In the event only a portion of the Property is
condemned with the remaining portion being capable of being
reasonably restored to its original functioning operating entity,
and provided this Mortgage is not otherwise in default beyond the
applicable curative period set forth herein, then, if Borrower
elects to restore by giving written notice to Lender of such
election within ninety (90) days of the entry of the final
judgment of condemnation in such proceedings, Lender shall permit
the condemnation award to be used in restoring the Property as
aforesaid, provided that such award, together with any other
funds available for such purpose, including funds to be made
available by Borrower, are sufficient to fully restore the
Property. In the event Borrower so elects to restore, the Lender
shall make the condemnation award available to Borrower in an
amount corresponding to the progress of the work performed and
based upon amounts certified to Lender by a qualified licensed
architect or engineer who is reasonably acceptable to Lender.
Provided however, Lender may require that all funds necessary
above the condemnation award for restoration be first used, that
any amount disbursed be solely for in-place and installed
materials and services, that Borrower comply with Chapter 713,
Florida Statutes, and that all contractors, contracts, plans and
specifications as well as the concept for restoration are first
reasonably approved in writing by Lender. Any portion of the
condemnation award not used as set forth in this subparagraph (c)
shall be applied in the manner set forth in subparagraph (b) next
above.
6. Use and Alteration of Property. Borrower shall not
allow changes in the nature of the occupancy for which the
Property was intended at the time this Mortgage was executed.
Borrower shall not initiate or acquiesce in a change in the
zoning classification of the Property set forth above without
Lender's written consent. Borrower shall not make any change in
the use of the Property which will create a fire or other hazard
not in existence on the date hereof, nor shall Borrower in any
way increase any hazard. Without the prior written consent of
Lender, no building or improvement may be erected on the
Property, nor may Borrower structurally remove or demolish any
building or improvement, nor may Borrower structurally remove or
demolish any building or improvement, nor may Borrower materially
structurally alter any building or improvement that would change
the use of the Property or that would otherwise decrease its
value, nor shall any fixture or personal property covered by this
Mortgage be removed at any time unless simultaneously replaced by
an article of equal kind, quality and value owned by Borrower,
and which is unencumbered except by the lien of this Mortgage and
other instruments of security securing the Note.
7. Surface Alteration and Mineral Rights. Borrower shall
not consent to, permit or indulge in any entry, either by itself
or by any others, upon the surface of the property for the
purpose of exploration, drilling, prospecting, mining, excavation
or removal of any earth, sand, dirt, rock, minerals, oil or any
other substance without the Lender's approval and written
consent.
8. Waste and Mechanic's Lien. Borrower shall keep the
Property, and all equipment, appurtenances and accessories
constantly in good order and repair; shall comply with all laws,
ordinances, and regulations now or hereafter affecting the
Property or any part thereof; and shall not permit, suffer or
commit any waste, impairment or deterioration of said Property,
or any part thereof. Included within the obligations of Borrower
contained in the preceding sentence is that Borrower shall
maintain an effective schedule of maintenance and repair and of
replacement of equipment and personal property situate in or on
the Property so that they are in good order and repair, and so
that the Property, all improvements thereon and all personal
property situated therein is maintained in good order and repair
and so that all of such items present to the guests and patrons
of Borrower in the operation of its business, a first class and
attractive premises. In addition, in the event any mechanics' or
materialmen's liens are filed against the Property, or any part
thereof, Borrower shall cause the same to be discharged, paid,
bonded or otherwise satisfied so that it no longer affects the
Property within thirty (30) days after the filing thereof, or
within ten (10) days after a suit for the foreclosure thereof has
been filed, whichever date is earlier.
9. Protection of Lender's Security. Borrower shall
execute and/or cause to be executed such further assurances of
title to the Property, and to take and cause to be taken, such
steps, including legal proceedings as may at any time appear to
the Lender to be desirable to perfect the title to the Property
in the Lender. Upon a failure or default in or breach of
performance of any of the covenants and agreements contained
herein not cured within applicable cure period, in any
particular, the Lender may, without notice to the Borrower, pay
all taxes, assessments, and public charges, and/or take such
steps as may be necessary to secure or redeem the Property from
forfeiture or sale, and/or effect or renew any insurance, and/or
make such repairs as may be necessary to keep the Property,
equipment, appurtenances and accessories in good order and repair
and/or take or cause to be taken, such steps, including legal
proceedings, as may be desirable to prevent the commission of
waste, impairment or deterioration of the Property, or any part
thereof, or to perfect the title to the Property in the Lender,
and/or to perform any other acts or expend such other sums deemed
necessary by Lender to protect its security for the repayment of
the Note, and all sums expended in the doing of or on account of
the same, shall be a part of the debt secured by this Mortgage,
and shall be secured as fully as the principal debt and interest
is secured, and shall bear interest at the highest legal rate
permitted by law to be charged by Lender from the date of the
expenditure thereof and shall together with the interest thereon,
be repaid by the Borrower before the expiration of a period of
thirty (30) days thereafter. But there is no obligation upon the
Lender to make such payments or take such steps, nor shall any
act of the Lender or any failure to act under the powers granted
by this paragraph 9, nor any lapse of time, be construed as the
waiver of any breach of the covenants and agreements contained
herein.
10. Civil Proceedings. If any action or proceeding is
commenced (except an action to foreclose this Mortgage or to
collect the debt secured hereby), to which action or proceeding
the Lender is or becomes a party or in which it becomes necessary
to defend or uphold the lien of this Mortgage (including to
protect its interests in any condemnation proceedings), all sums
paid by the Lender for the expense of any litigation (including
reasonable attorneys' fees and appellate counsel fees, if any) to
prosecute or defend the rights and lien created by this Mortgage
shall on notice and demand be paid by the Borrower, together with
interest thereon at the highest legal rate permitted by law to be
charged by Lender, and shall be a lien on the Property, prior to
any right or title to, interest in or claim upon the Property
subordinate to the lien of this Mortgage, and shall be deemed to
be secured by this Mortgage and evidenced by the Note.
11. Payments Received. Any payment made in accordance with
the terms of this Mortgage by any person at any time liable for
the payment of the whole or any part of the sums now or hereafter
secured by this Mortgage, or by any subsequent owner of the
Property, or by any other person whose interest in the Property
might be prejudiced in the event of a failure to make such
payment, or by any stockholder, officer or director of a
corporation or by any partner of a partnership or beneficiary of
a trust which at any time may be liable for such payment or may
own or have such an interest in the Property, shall be deemed, as
between the Lender and all persons who at any time may be liable
as aforesaid or may own the Property, or any part thereof, to
have been made on behalf of all such persons.
12. Inspections and Management. The Borrower agrees that
Lender and any person authorized by the Lender shall have the
privilege of making inspections of the Property at reasonable
times upon reasonable prior notice during the life of this
Mortgage.
13. Financial Information. Within ninety (90) days
following the end of the fiscal year of Borrower, the Borrower
shall promptly furnish to the Lender a statement of the financial
condition of Borrower including balance sheets, financial and
operating statements showing, inter alia, gross income, receipts
and revenues and expenses with respect to operation of the
Property during such fiscal period, in comparative form to the
preceding fiscal year, and in form and containing such
information as shall be satisfactory to the Lender and prepared
in accordance with generally accepted accounting principles, and
certified to by the Borrower and, if Lender shall require, by an
independent certified public accountant. Such statement shall
show with other pertinent information all rents, profits and
income received from tenants of the Property including rents,
profits and income paid in excess of minimum rentals or payments
called for by the respective leases or contracts. Lender shall
be entitled to inspect, audit and make extracts from the records
and books of account with respect only to the Property which
shall be prepared and maintained by Borrower, in a manner
satisfactory to Lender, at the Property. At the written request
of Lender, the Borrower shall cause any other person or entity
liable for all or any portion of the indebtedness secured hereby
from time to time to submit to Lender a financial statement as to
such person or entity prepared by such person or entity within
the same ninety (90) day period required above on an annual
basis.
14. Uniform Commercial Code. When and if Borrower and
Lender shall respectively become the Debtor and Secured Party in
any Uniform Commercial Code Financing Statement affecting
property either referred to or described herein, or in any way
connected with the use and enjoyment of the Property, this
Mortgage shall be deemed the Security Agreement as defined in
said Uniform Commercial Code and the remedies for and violation
of the covenants, terms and conditions of the agreements herein
contained shall be (i) as prescribed herein, or (ii) by general
law, or (iii) as to such part of the security which is also
reflected in said financing statement by the specific statutory
consequences now or hereafter enacted and specified in the
Uniform Commercial Code, all at Lender's sole election. Borrower
and Lender agree that the filing of such financing statement in
the records normally having to do with personal property shall
never be construed as in anywise derogating from or impairing
this declaration and hereby stated intention of the parties
hereto, that everything used in connection with the production of
income from the Property (furniture only excepted) and/or adapted
for use therein and/or which is described or reflected in this
Mortgage is, and at all times and for all purposes and in all
proceedings both legal or equitable shall be, regarded as part of
the real estate irrespective of whether (i) any such item is
physically attached to the improvements, (ii) serial numbers are
used for the better identification of certain equipment items
capable of being thus identified in a recital contained herein or
in any list filed with the Lender, or (iii) any such item is
referred to or reflected in any such financing statement so filed
at any time. Similarly, the mention in any such financing
statement of (1) the rights in or the proceeds of any fire and/or
hazard insurance policy, or (2) any award in eminent domain
proceedings for a taking or for loss of value, or (3) the
debtor's interest as lessor in any present or future lease or
rights to income growing out of the use and/or occupancy of the
Property mortgaged hereby, whether pursuant to lease or
otherwise, shall never be construed as in anywise altering any of
the rights of Lender as determined by this instrument or
impugning the priority of the Lender's lien granted hereby or by
any other recorded documents, but such mention in the financing
statement is declared to be for the protection of the Lender in
the event any court or judge shall at any time hold with respect
to (1), (2) and (3) that notice of Lender's priority of interest
to be effective against a particular class of persons, including,
but not limited to, the Federal government and any subdivisions
or entity of the Federal government, must be filed in the
Commercial Code Records. Borrower shall pay for all reasonable
costs and expenses, including reasonable attorneys' fees and any
record searches for financing statements Lender may reasonably
require, incident to the preparation and filing of such financing
statements.
15. Assignment of Rents. Borrower does hereby assign and
set over unto the Lender as additional security for the
indebtedness and other items herein secured, all rents, issues,
profits, income and accounts receivable generated through the use
by Borrower or others of all or any part of the Property,
including any such rents, issues, profits, income and accounts
receivable of any business activity conducted by Borrower on or
through the use of the Property, as well as the proceeds of all
of the foregoing. Borrower does hereby appoint the Lender its
attorney-in-fact to collect said rents, issues, profits, income
and accounts receivable with or without suit and apply the same,
less expenses of collection, to the said indebtedness, other
secured items and repairs, in such manner as the Lender may
elect; provided, however, that until there be a default under the
terms of this Mortgage (which is not cured within the applicable
curative period prescribed herein), Borrower may continue to
collect and enjoy said rents, issues, profits, income and
accounts receivable giving only an annual accounting to the
holder of the Note for the same. The curing of any default
within the period permitted by this Mortgage shall entitle the
Borrower to again collect said rents, issues, profits, income and
accounts receivable. This assignment of rents, issues, profits,
income, and accounts receivable and power of attorney shall be
irrevocable and shall be in addition to the other remedies herein
provided for in event of default and may be put into effect
independently of or concurrently with any of said remedies, but
no liability shall attach to the Lender for failure or inability
to collect any rents, issues, profits, income and accounts
receivable herein assigned. Assignment, lien, and power of
attorney shall apply to all rents, issues, profits, income,
accounts receivable chooses in action and the proceeds of same
hereafter accruing from present contracts for deed, purchase
agreements, option agreements or leases and rentals of the
Property and any business activity conducted from or on the
Property and from all contracts for deed or purchase agreements,
option agreements or leases and rentals and any business activity
hereafter made or conducted by the present or any future owners
of the Property, with respect to the Property; and any persons
entering into contracts for purchase or sale of the Property
shall take subject to all the provisions and conditions hereof.
16. Future Advances. In addition to the Note referred to
herein, this Mortgage shall also secure future advances made by
the Lender to the Borrower, which future advances shall be at the
option of the Lender; however, the maximum principal amount
secured by this Mortgage shall not exceed twice the principal
amount of the Note. All such future advances shall be made
within the time limit authorized by Florida law for making valid
future advances with interest and all indebtednesses created by
virtue of such future advances shall be and are secured hereby.
All provisions of this Mortgage shall apply to any future
advances made pursuant to the provisions of this paragraph 16.
Nothing herein contained shall limit the amount secured by this
Mortgage, if such amount is increased by advances made by the
Lender as herein elsewhere provided and authorized for the
protection of the security of the Lender.
17. Other Documents. The Borrower hereby acknowledges that
certain other documents or instruments have been, are being or
will be submitted by or for the Borrower or executed by the
Borrower and the Lender in connection with the loan evidenced
hereby. Any misrepresentation in or default under any of said
documents or other instrument executed in connection with the
loan secured hereby on even date herewith or hereafter shall be
and constitute a default under this Mortgage and the Note secured
hereby.
The word "Document(s)" shall mean any document or instrument
executed or submitted by or for the Borrower in connection with
the Loan, including, as applicable but not limited to: Note,
Mortgage, Loan Agreement, Construction Loan Agreement, Assignment
of Rents, Leases, Contracts, Accounts Receivable, Accounts and
Deposit Accounts, Security Agreement, Financing Statements,
Environmental Compliance and Indemnity Agreement, Owner's
Affidavit, Certificate of Corporate Resolution and/or Good
Standing, Loan Application, Financial Statement, Title Insurance
Commitment or Policy, Survey, Site Plan, Plans and
Specifications, Construction Breakdown, Insurance Policies,
Opinions of Counsel, Letters of any Governmental Authority,
provider of utilities, architect, engineer or other consultant,
Construction Commitment, Permanent Commitment and Construction
Contract.
18. Release of Liability. Without affecting the liability
of any party (other than any party released pursuant thereto) for
payment of any indebtedness secured hereby, and without affecting
the superiority or validity of the lien hereof upon any Property
not released pursuant thereto, Lender may at any time and from
time to time, without notice, in whole or in part, release or
discharge the obligation of any party liable for payment of any
indebtedness secured hereby, or extend the time for payment for
such indebtedness, or agree to alter any other terms of payment
of such indebtedness or accept additional security of any kind or
release any Property securing such indebtedness or consent to the
making of any map or plat for the creation of any easements
thereon or otherwise.
19. Intervening Liens. Any agreement hereafter made by
Borrower and Lender pursuant to this Mortgage shall be superior
to the rights of the holder of any intervening lien or
encumbrance.
20. Waiver. No failure of Lender to exercise any option
herein given to declare the maturity of the debt hereby secured
shall be taken or construed as a waiver of its right to exercise
such option or to declare such maturity by reason of any past,
present, or future default on the part of Borrower; and the
procurement of insurance or the payment of taxes or other liens,
debts, or charges by Lender shall not be taken or construed as a
waiver of its right to declare the maturity of the indebtedness
hereby secured by reason of failure of Borrower to procure such
insurance or to pay such taxes, debts, liens or charges. The
lien of this instrument shall remain in full force and effect
during any postponement or extension of time of payment of any
part or all of the indebtedness secured hereby and during the
term of any future advances made hereunder.
21. Exemptions. The Borrower agrees not to set up or claim
the benefit of curtesy or dower laws, or any exemption or insol-
vency laws against any claim of the Lender, for any sum of money
which may become due and payable to it, under the covenants and
agreements of the Note, or of this Mortgage, or any other instru-
ment securing the Note, or against the securing of execution of
any judgment sought thereon, all of said rights and exemptions
being hereby expressly waived.
22. Default. The happening of any of the following events
shall constitute a default hereunder: (a) a default shall occur
under the Note; (b) failure of Borrower to perform any agreement
in this Mortgage or in any other instrument securing the Note or
in any other instrument executed by Borrower in connection with
the Loan secured hereby not cured within the cure period set
forth therein; (c) the filing of any petition under the
Bankruptcy Code, or any similar federal or state statute, by any
Obligor (which term shall mean and include the Borrower, each
borrower, endorser, surety, guarantor, and all others who may
become liable for all or any part of the obligations secured
hereby, as well as anyone that owns, from time to time, all or
any portion of the Property or any interest therein) or by any
Obligor against another Obligor; (d) the filing by anyone other
than an Obligor of any petition under the Bankruptcy Code, or any
similar federal or state statute, against any Obligor which is
not vacated within sixty (60) days after filing; (e) the filing
in any court by any person or entity of an application for the
appointment of a receiver or trustee to take custody of the
Property or any part thereof which is not vacated within sixty
(60) days after filing; (f) the filing of any application in any
court for the appointment of a receiver for the benefit of one or
more creditors which is not vacated within sixty (60) days after
filing, or the making of a general assignment for the benefit of
creditors as to any Obligor; (g) the dissolution, business
failure, death, merger, consolidation, or reorganization of any
Obligor; (h) any material warranty, representation, certificate
or statement of any Obligor (whether contained in this Mortgage,
the Note, other instruments of security or other instruments
executed in connection with the Loan secured hereby) is not true;
(i) taking of possession of all or any substantial part of the
Property encumbered by this Mortgage or other instruments of
security securing the Note at the instance of any governmental
authority; (j) a default shall occur under or any proceedings are
instituted for the foreclosure or collection of any mortgage,
judgment or lien prior or subordinate to the lien of this
Mortgage affecting the Property (including collateral encumbered
by the other instruments of security for the Note); (k) a
material default by Borrower or other Obligor shall occur under
any contract affecting all or any part of the Property; (l) a
material adverse change in the financial condition of the
Borrower or any Obligor; or (m) should any franchise, license or
permit in existence on the date of this Mortgage or any other
franchise, license or permit necessary for the operation and use
of the Property contemplated herein be revoked or terminated or
should any conditions imposed by any governmental authority not
be complied with by the time requested by such authority as a
condition to non-revocation or non-termination. The enumeration
of events of default under this paragraph 22 shall not exclude
such other events of default under this Mortgage which are set
forth in other paragraphs.
23. Acceleration. If a monetary default shall occur here-
under and remain uncured for thirty (30) days, or should a
nonmonetary default occur hereunder and remain uncured for thirty
(30) days or more following provision of written notice to
Borrower from Lender specifying with particularity such event of
nonmonetary default (or, if such nonmonetary default cannot be
reasonably cured within the thirty (30) day period, if Borrower
does not commence to cure such nonmonetary default within such
thirty (30) day period or thereafter fails to diligently and
continuously proceed to cure such nonmonetary default), then,
without notice, the full unpaid principal amount of the Note
together with all accrued interest shall become immediately due
and payable at the option of the Lender as fully and completely
as if said aggregate sum were originally stipulated to be paid at
such time. Monetary default shall be deemed to include failure
to make payment of principal, interest or late charges under the
Note, as well as payments of escrow, taxes and governmental
assessments or premiums for insurance under this Mortgage and any
security agreement securing the Note. That is to say, upon the
breach of any of the terms or covenants herein to be performed by
the Borrower and the failure of the Borrower to cure such breach
within the applicable curative period set forth in the preceding
sentence, the Lender or holder shall have the right to accelerate
the maturity of this Mortgage as though it were due and payable
on the day following such curative period and to demand payment
in full of the Mortgage amount or any unpaid balance thereof, and
to exercise all the rights and remedies herein or by law reserved
to the Lender the same as in any event of default hereunder,
anything in the Note secured hereby or herein to the contrary
notwithstanding. Notwithstanding anything contained in this
paragraph 23 to the contrary, except as expressly stated in such
subparagraphs, there shall be no requirement of a curative period
as set forth above in the event of any default specified in
paragraphs 22(c), (d), (h), (i), (j) or (k) hereof. If the Note
secured hereby is a demand note, the terms and provisions of this
paragraph or of any other provision in this Mortgage, shall not
be deemed or interpreted to alter or abrogate the demand nature
of the Note or the rights of Lender under a demand instrument.
24. Receiver. In the event a suit is instituted to
foreclose or reform this Mortgage or to enforce payment of any
claims hereunder, the Lender shall have the right, at any time
pending such suit, to apply to the Court having jurisdiction
thereof for the appointment of a Receiver of all and singular the
Property, and of all rents, profits, income, issues, accounts
receivable and proceeds as assigned hereunder; and upon such
application such court shall forthwith appoint a Receiver of the
Property, all and singular, and of such rents, income, profits,
issues and accounts receivable with the usual powers and duties
of Receivers in like cases, and such appointment shall be made as
a matter of absolute right to the Lender and without reference to
the adequacy or inadequacy of the security, or to the solvency or
insolvency of the Borrower. Such rents, profits, income, issues
and accounts receivable shall be applied, after payment of the
expenses of receivership and management of the Property by the
Receiver aforesaid, according to law and the order and practice
of such Court, and all rents, profits, income, issues and
accounts receivable as hereinabove assigned are hereby
transferred, assigned, set over and pledged as further security
for the payment of the mortgage indebtedness, with the right on
the part of the Lender, but without any duty to do so, at any
time after default hereunder to demand and receive and apply the
same upon the mortgage indebtedness, and such appointment shall
be without notice to any Obligor hereunder.
25. Costs and Attorneys' Fees. In the event the Property
or any part thereof becomes the subject of or involved in any
action or court proceeding (including any bankruptcy case or
proceeding), the Borrower shall pay and reimburse the Lender for
all costs, charges and expenses, including reasonable attorneys'
fees, and further including those on appeal, incurred by the
Lender in connection with or growing out of such action or
proceeding and all such costs, charges, expenses and attorneys'
fees shall be secured by the lien of this Mortgage. The Borrower
agrees to pay all such costs, charges, expenses and attorneys'
fees to the Lender promptly. The Borrower will pay all costs,
charges and expenses including reasonable attorneys' fees, costs
of abstracts of title, title searches and appraisals, incurred or
paid at any time by the Lender because of the failure of the
Borrower to promptly and fully perform the agreements and
covenants of the Note or this Mortgage or of any other instrument
securing the Note or executed by the Borrower in connection with
the loan evidenced by the Note. Said costs, charges and expenses
shall be immediately due and payable and secured by the lien of
this Mortgage. Said reasonable attorneys' fees shall include any
such incurred or expended at any time by the Lender after any
default by the Borrower as specified above even if incurred prior
to the commencement of any action or otherwise, in the
foreclosure of this Mortgage or the collection of the amount
secured hereby. The obligation to pay Lender's costs, expenses
and attorneys' fees shall include those costs, expenses and fees
incurred by Lender in seeking to collect or enforce any judgment
entries on the Note, this Mortgage or any other instrument of
security, and such obligations shall survive the entry of any
judgment upon the Note or this Mortgage and such obligation shall
not merge in such judgment or judgments but shall survive and
continue until all debts and obligations evidenced by the Note,
this Mortgage or any other instruments of security, and any
judgment or judgments entered thereon or foreclosures thereof are
enforced, paid and satisfied in full.
26. Late Charges. Installments, payable under the terms
hereof and the Note secured hereby, not paid within ten (10) days
after due date shall be subject to "late charges" as provided in
the Note, and such "late charges" are secured by the lien hereof.
27. Transfer of Property. If all or any part of the
Property or any interest therein is sold or transferred by
Borrower (or any subsequent owner of the Property) without
Lender's prior written consent, which consent will not be
unreasonably withheld, Lender may, at Lender's option, and
without notice to Borrower, declare all sums secured by this
Mortgage to be immediately due and payable. Lender shall have
waived such option to accelerate if, prior to the sale or
transfer, Lender and the person to whom the Property is to be
sold or transferred reach agreement in writing that the credit
and other factors required by Lender (including, without
limitation, experience, principle location of person and past
credit performance) is satisfactory to Lender in its sole
discretion and that the interest payable on the sum secured by
this Mortgage shall be at such rate as Lender shall request in
its reasonable discretion, and at closing such person shall
assume in writing the indebtedness secured hereby and the
obligations set forth herein, and execute such other documents
that Lender may reasonably require.
28. Other Limitations. In addition to the limitation set
forth in paragraph 27 hereof, Borrower agrees that the following
events shall not occur on or after the day and year first above
written without the prior written consent of Lender: (a) a
material change of the General Partner of the Borrower that
effectively changes control of the Borrower; (b) encumbering of
all or any part of the Property except in favor of Lender; (c)
conversion of the Property into a congregate form of ownership;
(d) sales or leases of interval ownership or time sharing of all
or any part of the Property; (e) conversion of the Property into
condominium form of ownership; (f) the Borrower is disqualified
to do business in the State of Wisconsin or Florida; or (g) the
use or operation of the Property in existence on the date of this
Mortgage, or the business engaged in Borrower on the Property on
the date of this Mortgage is changed, discontinued or terminated.
If any of such events do occur, such shall be deemed a default
under this Mortgage, and the Lender or holder shall have the
right to accelerate the maturity of this Mortgage as though it
were due and payable on the day of such default and to demand
payment in full of the Note or any unpaid balance thereof, and to
exercise all rights and remedies herein or by law reserved to the
Lender the same as in any event of default hereunder, anything
contained in the Note secured hereby or herein to the contrary
notwithstanding. There shall be no requirement of any curative
period, and the provisions of paragraph 23 hereof as to curative
periods are inapplicable, for curing such event of default under
this paragraph 28 or under paragraph 27 hereof. The Borrower
acknowledges that the Loan secured hereby is a commercial loan
and that Lender is making the Loan to Borrower not only on the
basis of the collateral secured by this Mortgage but likewise on
the basis of the Borrower owning all of the Property during the
term of the Loan. Accordingly, Borrower agrees that limitations
contained in this paragraph 28, and in paragraph 27 hereof shall
be strictly construed against the Borrower and in favor of the
Lender. Any default under any of such limitations shall be non-
rebuttable and conclusively presumed to jeopardize the security
and collateral of Lender for the Loan, as same is defined and
construed under Florida appellate decisions as may exist from
time to time (but without any expressed or implied consent or
waiver that state law rather than federal law shall be applicable
in the construction and application of the foregoing provisions).
At the option and in the sole discretion of Lender, Federal
regulatory or statutory law as affects "due on sale" or "due on
encumbrance" clauses when a federal savings and loan association
is the lender shall apply and control, rather than Florida law,
irrespective of any other provision contained in this Mortgage to
the contrary.
29. Proceeds of Claims, Awards, Rents and Sales. All
monies, other than proceeds of foreclosure sale or other transfer
of title to the Property in extinguishment of the indebtedness
secured by this Mortgage, which are paid to, collected or
received by Lender in connection with or as the proceeds of
insurance loss claims, condemnation awards, rents, leases, or
sales as provided under the terms of this Mortgage, shall be
applied by Lender as follows: first, to payment of Lender's costs
including any advances made by Lender and all expenses, real
estate commissions and reasonable attorneys' fees incurred
therewith; second, to payment to Lender of interest, at the
highest legal rate permitted by law to be charged by Lender, on
said costs from the date of such expenditures; and third, at
option of Lender to (a) restoration or repair of the Property, if
applicable, or (b) to payment of interest due on the principal
indebtedness, and the remainder, if any, to the principal
indebtedness secured by this Mortgage. Unless Borrower and
Lender otherwise agree in writing, any such application of
proceeds to principal shall not extend or postpone the due date
of the installment payments referred to in paragraphs 1 and 2
hereof or change the amount of such installments. Nothing in
this paragraph shall in any way affect the lien of this Mortgage.
The provisions of this paragraph 29 are subject to the rights of
Borrower to restore the premises as set forth in paragraph 4 and
5 above.
30. Proceeds of Foreclosure Sale. If this Mortgage is
foreclosed by a proper suit and the Property is sold to satisfy a
decree of foreclosure, the proceeds of such sale shall be applied
as follows: First to the expenses and costs incurred hereunder,
including reasonable attorneys' fees for such services as may be
necessary in the premises and for the collection of said
indebtedness and the foreclosure of this Mortgage; second, to the
payment of whatever sum or sums the Lender may have paid or
become liable to pay in carrying out the terms and stipulations
of this Mortgage, together with interest thereon; and finally, to
the payment and satisfaction of the Note. The balance, if any,
shall, unless the Court decrees otherwise, be paid into the
registry of the Court having jurisdiction of said foreclosure
suit, to abide the further order of said Court.
31. Hazardous Waste. Borrower warrants and represents to
Lender to Borrower's knowledge after reasonable investigation:
(a) That neither Borrower nor any other person to the
Borrower's knowledge, after reasonable inquiry, has ever used the
Property as a facility for the storage, treatment or disposal of
any "Hazardous Substances," as that term is hereinafter defined;
(b) That to Borrower's knowledge the Property is now
and at all times hereafter will continue to be in full compliance
with all federal, state and local "Environmental Laws" (as that
term is defined hereinafter), including but not limited to, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA"), 42 USC sec. 9601, et. seq., the Superfund
Amendments and Reauthorization Act of 1986 ("SARA"), Public Law
99-499, 100 Stat. 1613, the Resource Conservation and Recovery
Act ("RCRA"), 42 USC sec. 6901, et. seq., the Florida Resource
Recovery and Management Act, sec. 403.701 et. seq., Florida
Statutes, the Pollutant Spill Prevention and Control Act, sec.
376.011-376.17 and 376.19-376.21, Florida Statutes, as the same
may be amended from time to time and all ordinances, regulations,
codes, plans, orders, and decrees now existing or in the future
enacted, promulgated, adopted, entered or issued, both within and
outside present contemplation of the Borrower and Lender;
(c) That to Borrower's knowledge and except for such
hazardous substances as are kept in small quantities as is custo-
mary in similar apartment projects, (i) as of the date hereof
there are no hazardous or toxic materials, substances, wastes or
other environmentally regulated substances (including solids or
gaseous products and any materials containing asbestos), the
presence of which is limited, regulated or prohibited by any
state, federal or local governmental authority or agency having
jurisdiction over the Property, or which are otherwise known to
pose a hazard to health or safety of occupants of the Property,
located on, in or under the Property or used in connection
therewith, or (ii) Borrower has fully disclosed to Lender in
writing the existence, extent and nature of any such hazardous or
toxic material waste or other environmentally regulated
substance, which Borrower is legally authorized and empowered to
maintain on, in or under the Property or use in connection
therewith, and Borrower has obtained and will maintain all
licenses, permits and approvals required with respect thereto,
and is in fully compliance with all of the terms, conditions and
requirements of such licenses, permits and approvals;
(d) That Borrower shall notify Lender of any change in
the nature or extent of any hazardous or toxic materials, sub-
stances or wastes maintained on, in or under the Property or used
in connection therewith, and will transmit to Lender copies of
any citations, orders, notices or other material governmental or
other communication received with respect to any other hazardous
materials, substances, wastes or other environmentally regulated
substances affecting the Property;
(e) That Borrower is not aware of, nor has the
Borrower nor any of its subsidiary or affiliated entities notice
of, any past, present or future events, conditions,
circumstances, activities, practices, incidents, actions or plans
which may interfere with or prevent compliance or continued
compliance with Environmental Laws or any ordinance, regulation,
code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder, or
which may give rise to any common law or legal liability, or
otherwise form the basis of any claim, action, demand, suit,
proceeding, hearing, study or investigation, based on or related
to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling, or the emission,
discharge, release or threatened release into the environment, of
any Hazardous Substance;
(f) That there is no civil, criminal or administrative
action, suit, demand, claim, hearing, notice or demand letter,
notice of violation, investigation, or proceeding pending or to
Borrower's knowledge threatened against Borrower or the Property,
relating in any way to any Environmental Laws or any regulation,
code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered promulgated or approved thereunder; and
(g) Borrower hereby agrees to indemnify, reimburse,
defend and hold harmless Lender, its officers, directors,
employees, successors and assigns from and against all demands,
claims, civil or criminal actions or causes of action, liens,
assessments, civil or criminal actions or causes of action,
liens, assessments, civil or criminal penalties or fines, losses,
damages, liabilities, obligations, costs, disbursements, expenses
or fees of any kind or of any nature (including, without
limitation, cleanup costs, attorneys', consultants' or experts'
fees and disbursements and costs of litigation at trial and
appellate levels) which may at any time be imposed upon, incurred
by or asserted or awarded against, Lender directly or indirectly,
resulting from: (i) any acts or activities of Borrower, its
agents, employees or contractors, at, on or about the Property
which contaminate air, soils, surface waters or groundwaters
over, on or under the Property; (ii) arising from or out of any
Hazardous Substance on, in or under the Property; (iii) pursuant
to or in connection with the application of any Environmental Law
to the acts or omissions of Borrower or any other person and any
environmental damage alleged to have been caused, in whole or in
part, by the transportation, treatment, storage, or disposal of
any Hazardous Substance at the Property; or (iv) arising from or
in relation to the presence, whether past, present or future, of
any Hazardous Substances on the Property in violation of
applicable Environmental Laws.
Without limiting the foregoing, this indemnification
provision specifically protects the Lender against any claim or
action from activities described in (i), (ii), (iii) or (iv)
above, based in whole or part upon any environmental statute,
rule, regulation or policy, including but not limited to Chapters
403 and 376, Florida Statues, the Florida Administrative Code,
the Comprehensive Environmental Response, Compensation and
Liability Act 1980, ("CERCLA") 42 USC sec. 9601, et seq., and other
laws, whether now in existence or enacted in the future.
Borrower's indemnification obligation hereunder shall be one
of strict liability and shall be enforceable without regard to
any fault or knowledge of Lender with respect to any act or
omission or condition or event which is the basis of the claim
under such indemnification obligation, except as disclosed in the
environmental report provided to Lender. Borrower's obligation
under this section shall not be limited to any extent by the term
of the Note or other obligations secured hereby, and such
obligation shall continue, survive and remain in full force and
effect notwithstanding payment in full or other satisfaction or
release of said Note (and other obligations secured hereby) and
this Mortgage, or any foreclosure under this Mortgage, or any
delivery of a deed in lieu of foreclosure. The provisions of
this section shall be deemed to survive and continue in full
force and effect after any foreclosure or other proceeding by
which the Lender, and its successors and assigns succeed to
ownership of the Property.
As used herein, "Environmental Law" means any federal,
state, or local statutory or common law relating to pollution or
protection of the environment, including without limitation, any
common law of nuisance or trespass, and any law or regulation
relating to emissions, discharges, releases or threatened
releases of Hazardous Substances into the environment (including
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Substances
As used herein, "Hazardous Substance" means any substance or
material (i) identified in Section 101(14) of CERCLA, 42 USC sec.
9601(14), as the same may be amended from time to time, or (ii)
determined to be toxic, a pollutant or contaminant, under
federal, state or local statute, law, ordinance, rule or
regulation or judicial or administrative order or decision, as
the same may be amended from time to time, including but not
limited to petroleum and petroleum products as defined in Sec.
376.301(10), Florida Statutes, as same may be amended from time
to time.
(h) Any breach of any warranty, representation or
agreement contained in this paragraph shall be an Event of
Default hereunder and shall entitle Lender to exercise any and
all remedies provided in this Mortgage and the Loan Documents, or
otherwise permitted by law.
32. Amounts Due. The Borrower, within ten (10) days upon
request in person or within fifteen (15) days upon request by
mail, will furnish a written statement duly acknowledged of the
amount due on this Mortgage and whether any offsets or defenses
exist against the Mortgage debt.
33. Notice. Any written notice, demand or request that is
required to be made hereunder or under the Note or under any
other instrument of security for the Note shall be served in
person or by registered or certified mail, return receipt
requested, addressed to the party to be served at its address set
forth below:
Borrower: Jeffrey Keierleber
Brookfield Lakes Corporate Center
250 Patrick Boulevard, Suite 140
Brookfield, WI 53045-5864
Lender: 111 Second Avenue Northeast
St. Petersburg, Florida 33701
ATTN: Commercial Real Estate Department
Terry K. Bush
The above addresses may be changed as to the applicable party by
providing the other party with notice of such address change in
the same manner provided above; provided, however, so long as
Borrower is the owner of all or any part of the Property the
address of the Borrower must be located within the continental
United States of America. In the event that written notice,
demand or request is made as provided in this paragraph 33, then
in the event that such notice is returned to the sender by the
U.S. Postal System because of insufficient address or because the
party has moved or otherwise other than for insufficient postage,
such writing shall be deemed to have been received by the party
to whom it was addressed on the date that such writing was
initially placed in the U.S. Postal System by the sender.
34. Severability. Wherever possible, each provision of
this Mortgage shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision
hereof shall be prohibited or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition
or invalidity only, without invalidating the remainder of such
provisions or of the remaining provisions of this Mortgage.
35. Nonrecourse. The Lender agrees, for itself, its repre-
sentatives, successors, endorsees and assigns, that: (i) neither
the Borrower, nor any general or limited partner, officer,
director, representative, successor, assign or affiliate of the
Borrower, shall be personally liable on the Note; and (ii) in the
event of default under the Note or hereunder, the Lender (and any
such representative, successor, endorsee or assignee) shall look
to the property encumbered by this Mortgage and/or the other
instruments of security that secure the Note (collectively, with
the Mortgage, the "Instruments of Security") for payment of the
Note, and will not make any claim or institute any action or
proceeding against the Borrower (or any general or limited
partners, officers, directors, representatives, successors,
assigns or affiliates of the Borrower) for any deficiency
remaining after collection of the Instruments of Security.
Provided however, and notwithstanding the foregoing, the Borrower
will become personally liable for any deficiency remaining after
collection of the Instruments of Security to the extent of the
loss suffered by Lender or its assigns, if title to the Property
is transferred or encumbered in violation of the terms of this
Mortgage, or should Borrower commit fraud, misapply rents,
insurance or condemnation proceeds in violation of this Mortgage
or breach section 31 of this Mortgage.
36. Binding Effect. Whenever the context of this Mortgage
so admits or requires, the terms Borrower and Lender shall
include the heirs, personal representatives, successors and/or
assigns of the respective parties hereto; the use of the singular
number shall include the plural, and the plural the singular; the
use of any gender shall include all genders, and if used, the
term Note or Promissory Note shall include the Note herein
described if more than one.
37. Headings. The headings of the paragraphs contained in
this Mortgage are for convenience of reference only and do not
form a part hereof and in no way modify, interpret or construe
the meaning of the parties hereto.
PROVIDED ALWAYS HOWEVER, that if the Borrower shall pay unto
the said Lender the moneys provided for in and by the Note and
this Mortgage and shall well and truly keep, observe and perform,
comply with and abide by each and every the stipulations,
agreements, conditions and covenants thereof as and when required
thereby then this deed and the estate hereby created shall cease
and be null and void, otherwise the same shall remain of binding
force and effect.
IN WITNESS WHEREOF, the Borrower has executed this Mortgage
or has caused the same to be executed by its duly authorized
representatives on the day and year first above written.
Signed, Sealed and Delivered DECADE COMPANIES INCOME
in the Presence of: PROPERTIES - A LIMITED
PARTNERSHIP, a Wisconsin
limited partnership authorized
/s/_________________________ to do business in the State of
SIGNATURE Florida, by its sole general
partner:
_________________________ By: DECADE COMPANIES, a
NAME LEGIBLY PRINTED, Wisconsin general partnership,
TYPEWRITTEN OR STAMPED by its managing general
partner:
By:/s/________________________
Jeffrey Keierleber
/s/__________________________ Brookfield Lakes Corporate
SIGNATURE Center
250 Patrick Boulevard
Suite 140
_________________________ Brookfield, WI 53045-5864
NAME LEGIBLY PRINTED,
TYPEWRITTEN OR STAMPED
As to Borrower
STATE OF WISCONSIN )
)SS
COUNTY OF )
The foregoing instrument was acknowledged before me
this ____ day of _____________, 1996, by JEFFREY KEIERLEBER, as
Managing General Partner of DECADE COMPANIES, a Wisconsin general
partnership, the sole partner of DECADE COMPANIES INCOME
PROPERTIES - A LIMITED PARTNERSHIP, a Wisconsin limited
partnership authorized to do business in the State of Florida, on
behalf of said limited partnership.
Personally Known _____
/s/________________________________
SIGNATURE
___________________________________
NAME LEGIBLY PRINTED,
TYPEWRITTEN OR STAMPED
NOTARY PUBLIC
(SEAL)
My Commission Expires:
EXHIBIT A
PARCEL A
LEGAL DESCRIPTION:
A PARCEL OF LAND LYING IN THE NORTHEAST 1/4 OF SECTION 7, TOWNSHIP
29 SOUTH, RANGE 16 EAST, PINELLAS COUNTY, FLORIDA, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE EAST 1/4 CORNER OF SAID SECTION 7, THENCE N00
DEGREES 54'38"E, FOR 413.55 FEET, ALONG THE EAST LINE OF SAID
SECTION 7, THE SAME BEING THE CENTERLINE OF U.S. HIGHWAY NO. 19
TO A POINT OF INTERSECTION WITH THE NORTHERLY RIGHT-OF-WAY LINE
OF SEABOARD COAST LINE RAILROAD; THENCE N81 DEGREES 07'02"W,
1117.55 FEET, ALONG SAID NORTHERLY RIGHT-OF-WAY LINE TO A POINT
OF INTERSECTION WITH THE EASTERLY RIGHT-OF-WAY LINE OF FLORIDA
POWER CORPORATION, AS DESCRIBED IN O.R. BOOK 1466, PAGE 156 OF
THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA; THENCE N00
DEGREES 42'41"E FOR 289.94 FEET, ALONG SAID EASTERLY RIGHT-OF-WAY
LINE TO THE POINT OF BEGINNING; THENCE CONTINUE N00 DEGREES
42'41"E, FOR 15.77 FEET ALONG SAID EASTERLY RIGHT-OF-WAY LINE;
THENCE N00 DEGREES 45'11"E, FOR 1030.36 FEET, ALONG SAID EASTERLY
RIGHT-OF-WAY LINE, TO A POINT OF INTERSECTION WITH THE SOUTHERLY
RIGHT-OF-WAY LINE OF COUNTY ROAD NO. 2 (NORTHEAST COACHMAN ROAD),
A 100 FOOT RIGHT-OF-WAY; THENCE N58 DEGREES 21'40"E, FOR 367.38
FEET, ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE TO A POINT OF
INTERSECTION WITH WESTERLY LINE OF THAT CERTAIN PARCEL OF LAND
DESCRIBED IN O.R. BOOK 4938, PAGE 922 OF SAID PUBLIC RECORDS OF
PINELLAS COUNTY, FLORIDA; THENCE ALONG SAID WESTERLY AND
SOUTHERLY LINE OF SAID PARCEL BY THE FOLLOWING SIX (6) COURSES:
1) S31 DEGREES 38'20"E, FOR 148.89 FEET; 2) THENCE S00 DEGREES
53'15"W, FOR 202.73 FEET TO A POINT OF CURVE OF A CURVATURE
CONCAVE TO THE NORTHWEST; 3) THENCE SOUTHWESTERLY 60.99 FEET
ALONG THE ARC OF A CURVE HAVING A RADIUS OF 135.19 FEET, AND A
CENTRAL ANGLE OF 25 DEGREES 50'55"; 4) THENCE S89 DEGREES 06'45"E
FOR 43.53 FEET; 5) THENCE S00 DEGREES 53'15"W, FOR 643.19 FEET;
6) THENCE S89 DEGREES 06'45"E, FOR 505.05 FEET; THENCE S00
DEGREES 38'15"W, FOR 133.49 FEET; THENCE N89 DEGREES 06'45"W, FOR
418.00 FEET; THENCE S22 DEGREES 06'58"W, FOR 103.86 FEET; THENCE
S30 DEGREES 06'45"E, FOR 36.78 FEET; THENCE N76 DEGREES 01'26"W,
FOR 58.50 FEET; THENCE S87 DEGREES 33'49"W, FOR 129.00 FEET;
THENCE N77 DEGREES 26'11"W, FOR 43.00 FEET; THENCE S82 DEGREES
33'49"W, FOR 200.00 FEET; THENCE N27 DEGREES 56'11"W, FOR 72.00
FEET; THENCE N89 DEGREES 11'11"W, FOR 25.96 FEET TO THE POINT OF
BEGINNING.
PARCEL B
LEGAL DESCRIPTION
A PARCEL OF LAND LYING IN THE NORTHEAST 1/4 OF SECTION 7, TOWNSHIP
29 SOUTH, RANGE 16 EAST, PINELLAS COUNTY, FLORIDA, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHEAST CORNER OF SAID SECTION 7; THENCE S00
DEGREES 54'38"W, FOR 979.41 FEET, ALONG THE EAST LINE OF SAID
SECTION 7, THE SAME BEING THE CENTERLINE OF U.S. HIGHWAY NO. 19;
THENCE N89 DEGREES 06'45"W, FOR 335.76 FEET TO THE POINT OF
BEGINNING, SAID POINT ALSO BEING ON THE WEST LINE OF THOSE
CERTAIN PARCELS AS DESCRIBED IN O.R. 4059, PAGE 1669 AND O.R.
4963, PAGE 927 OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA;
THENCE N00 DEGREES 53'33"E, FOR 718.81 FEET ALONG SAID WEST LINE
TO THE SOUTHERLY RIGHT-OF-WAY LINE OF COUNTY ROAD NO. 2
(NORTHEAST COACHMAN ROAD); THENCE S58 DEGREES 21'40"W, FOR 485.63
FEET, ALONG SAID SOUTHERLY RIGHT-OF-WAY; THENCE LEAVING SAID
SOUTHERLY RIGHT-OF-WAY ALONG THE EASTERLY AND NORTHERLY LINES OF
THAT CERTAIN PARCEL AS DESCRIBED IN O.R. 4938, PAGE 922 OF THE
PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA BY THE FOLLOWING SIX
(6) COURSES: 1) S31 DEGREES 38'20"E, FOR 69.68 FEET; 2) S89
DEGREES 06'45"E, FOR 21.94 FEET; 3) S00 DEGREES 53'15"W, FOR
243.94 FEET; 4) S89 DEGREES 06'45"E, FOR 200.00 FEET; 5) S00
DEGREES 53'15"W, FOR 155.00 FEET; 6) S89 DEGREES 06'45"E, FOR
150.00 FEET TO THE POINT OF BEGINNING.