Form 10-K/A
Amendment No. 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[ X ] Annual Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934 (Fee Required)
For the fiscal year ended December 31, 1995
[ ] Transition Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 (No Fee Required)
For the transition period from ______________ to _______________
Commission file no.: 0 - 21455
DECADE COMPANIES INCOME PROPERTIES - A LIMITED PARTNERSHIP
(exact name of registrant as specified in its charter
Wisconsin 39-1518732
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization
Brookfield Lakes Corporate Center
250 Patrick Blvd., Suite 140
Brookfield, Wisconsin 53045-5864
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 414-792-9200
Securities registered pursuant to Section 12(b) if the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Limited Partnership Interests
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements
Yes X . No_____.
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K (sec. 229.405 of this
chapter) is not contained herein, and will not be contained, to
the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of
this Form 10-K or any amendment to this Form 10-K. [ X ]
The aggregate market value of the Limited Partnership Interests
("Interests") is indeterminable because there is no established
market for the Interests.
<PAGE>
Decade Companies Income Properties - A Limited Partnership hereby
files this Amendment to file additional exhibits to its Form 10-
K.
Listing of Exhibits
Exhibit Number Description
3 Certificate of Limited Partnership,
previously filed with Registration Statement
on August 18, 1985.
10 Forms of Material Contracts
10.1 Acquisitions Agreement (previously
filed with Registration Statement on
August 28, 1986).
10.2 Management Consulting Agreement
(previously filed with Registration
Statement on August 28, 1985).
10.3 Property Management Agreement
(previously filed with Registration
Statement on August 28, 1985).
10.4 Security Agreement between Partnership
and Home Savings of America, F.A.
10.5 Mortgage for Adjustable Interest Rate
Loan between Partnership and Home
Savings of America, F.A.
10.6 Mortgage Modification Agreement
between Pelican Sound Apartments,
Inc., Fengar Investment Corporation,
and River Bank America.
10.7 Term Loan Agreement between River Bank
America, Pelican Sound Apartments,
Inc. and Fengar Investment
Corporation.
10.8 Loan Agreement between Republic Bank
and the Partnership.
10.9 Mortgage between Republic Bank and the
Partnership.
10.10 Nonrecourse Agreement between Home
Savings of America and the
Partnership.
10.11 Mortgage Consolidation and
Modification Agreement between Pelican
Sound Limited Partnership and River
Bank America.
10.12 Fee Agreement For Purchase and Sale of
Pelican Sound.
10.13 Regulatory Agreement Concerning The
Meadows loans.
(b) Reports on Form 8-K filed in the fourth quarter of
1994.
None.
(c) Exhibits -- The response to this portion of Item 14 is
submitted in Item 14(a)(3) herein.
(d) Financial Statement Schedules.
The response to this portion of Item 14 is submitted in Item
14(a)(2) of this report.
Part IV
Item 14. Exhibits, Financial Statement Schedules and Reports
(a)(1) Financial Statements
The following financial statements of Decade Companies
Income Properties - A Limited Partnership are included in
Item 8:
Balance Sheets, December 31, 1995 and 1994
Statements of Operations for the years ended
December 31, 1995, 1994 and 1993
Statements of Changes in Partners' Capital for
the years ended December 31, 1995, 1994, and 1993
Statements of Cash Flows for the years ended December
31, 1995, 1994, and 1993
Notes to Financial Statements, December 31, 1995
(2) Financial Statement Schedules
The following financial statement schedules of Decade
Companies Income Properties - A Limited Partnership are
required and the contents have been included in the
Financial Statements in Item 8 and the Notes thereto:
Schedule XI--Real Estate and Accumulated Depreciation.
Schedule XII--Mortgage Loans on Real Estate
All other schedules for which provision is made in the
applicable accounting regulation of the Securities and
Exchange Commission are not required under the related
instructions or are inapplicable, and therefore have been
omitted.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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
(Registrant)
Decade Companies
General Partner
December 5, 1996 By/s/ Jeffrey L. Keierleber
Jeffrey L. Keierleber, General Partner of
Decade Companies
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed in the capacities and on the
dates indicated.
December 5, 1996 By/s/ Jeffrey L. Keierleber
Jeffrey L. Keierleber, Principal Executive
Officer and Principal Financial and
Accounting Officer of the Registrant
EXHIBIT 10.4
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement") is made and entered
into as of this 22nd day of November, 1989, by and between DECADE
COMPANIES INCOME PROPERTIES - A LIMITED PARTNERSHIP, a Wisconsin
limited partnership ("Borrower"), and HOME SAVINGS OF AMERICA,
F.A., a federally chartered savings and loan association
("Secured Party").
RECITALS
A. Borrower owns, in fee simple, certain real property in
Madison, Dane County, Wisconsin, commonly known as 237-293 and
301-417 North Thompson Drive, and more particularly described in
Exhibit A attached hereto and, by this reference, made a part
hereof ("Property");
B. In connection with the Property, Secured Party is
making a loan in the principal amount of FOUR MILLION ONE HUNDRED
THOUSAND AND NO/100 DOLLARS ($4,100,000.00), evidenced by a
Promissory Note Adjustable Interest Rate ("Note") of even date
and a Mortgage, an Assignment of Rents and Leases and this
Security Agreement, all of even date. Said Note and the
documents securing the same are hereinafter sometimes
collectively referred to as ("Loan Documents"); and
C. Secured Party requires, as a condition precedent to its
advancing funds pursuant to the Loan Documents, that the Borrower
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower agrees as
follows:
1. Borrower hereby grants to Secured Party, its successors
and assigns, a continuing security interest in the following
(hereinafter called the "Collateral"):
(a) all furnishings, furniture, fixtures, machinery,
equipment, appliances, systems, building materials,
vehicles and personal property of every kind and nature
whatsoever (including, without limitation, all gas and
electric fixtures, radiators, heaters, engines and
machinery, boilers, ranges, elevators and motors,
plumbing and heating fixtures and systems, carpeting
and other floor coverings, washers, dryers, water
heaters, mirrors, mantels, air conditioning apparatus
and systems, refrigerating plant, refrigerators,
computers and all hardware and software therefor,
cooking apparatus and appurtenances, window screens,
draperies, awnings, and storm sashes) which are or
shall be attached to any buildings, structures or
improvements now or hereafter located on the Property,
or which are or shall be located in, on or about the
Property, or which, wherever located (including,
without limitation, in warehouses or other storage
facilities or in the possession of or on the premises
of vendors or manufacturers thereof), are used or
intended to be used in or in connection with the
construction, fixturing, equipping, furnishing, use,
operation or enjoyment of the Property or the
improvements located thereon, and any and all
replacements thereto, but specifically excluding all
personal property now or hereafter owned or leased by
any tenant leasing any portion of the Property, or
buildings, structures or improvements located thereon;
(b) all warehouse receipts or other documents of title
relating to any of the foregoing;
(c) all permits, licenses and franchises, including all
extensions, additions, improvements, betterments,
renewals and replacements of any of the foregoing,
together with the benefit of any deposits or payments
now or hereafter made by the Borrower, or either of
them, or on their behalf in connection with any of the
foregoing;
(d) all accounts receivables from tenants, suppliers or
service organizations serving the Property or any
buildings, structures or improvements now or hereafter
located thereon; and
(e) all proceeds of any of the foregoing;
to secure the following obligations (hereinafter collectively
called the "Obligations"):
(i) the payment of the indebtedness due under the
terms of the Note and the performance of all other
obligations of the Borrower under the Loan
Documents;
(ii) the performance of any and all covenants,
agreements, liabilities and obligations of
Borrower to Secured Party, its successors and
assigns, provided for or arising under this
Security Agreement; and
(iii) the payment of all costs and expenses of
collection, legal expenses and reasonable
attorneys' fees incurred by Secured Party, its
successors and assigns, in the enforcement of the
rights of Secured Party hereunder or under the
Loan Documents.
2. Borrower hereby covenants and warrants to Secured
Party, its successors and assigns, as follows:
(a) upon notice given by Secured Party from time to time,
Borrower shall prepare and deliver to Secured Party a
full inventory listing, as of the date such notice is
given, all items then constituting Collateral and such
other information as Secured Party may request with
respect to purchases or sales or other acquisitions or
dispositions of Collateral. Each such inventory shall
be certified as being true and complete by a duly
authorized general partner of Borrower. Unless Secured
Party otherwise agrees, in writing, all Collateral
consisting of tangible property will be kept at the
Property;
(b) except for the security interests granted hereunder and
under the Mortgage, Borrower is and will be at all
times the sole owner of the Collateral, free from any
lien, security interest, pledge or encumbrance, and no
person other than the Secured Party has or will have
any security interest or lien upon any of the
Collateral;
(c) Borrower will defend the Collateral against all claims
and demands of all persons at any time claiming the
same or any interest therein;
(d) except for the financing statements to be filed
pursuant to this Agreement or any other financing
statements filed for the benefit of Secured Party, no
financing statement or other acknowledgment of lien
covering any Collateral or any proceeds thereof is on
file in any public office. Borrower shall immediately
give Secured Party notice in writing of any change in
its address from that shown in this Agreement, shall
also upon demand execute and deliver to Secured Party
such financing statements, assignments, and other
documents in form satisfactory to Secured Party, and do
all such further acts and things as Secured Party may
at any time and from time to time reasonably request as
may be necessary or appropriate to establish and
maintain a valid perfected first security interest in
the Collateral as security for the Obligations, free of
any liens, claims or encumbrances, and Borrower will
pay the cost of filing or recording the same or filing
or recording this Agreement in all public offices
wherever filing or recording is deemed by Secured Party
to be necessary or desirable. Borrower will execute
and endorse such documents, certificates or forms as
may be necessary or appropriate in order that the
security interest of Secured Party hereunder may be
noted by the proper authorities upon the certificates
of title of each of the motor vehicles, if any,
described herein, and will deliver or cause to be
delivered to Secured Party any and all such documents
or certificates of title relating to such Collateral.
Borrower hereby appoints Secured Party as its attorney-
in-fact, with full power of substitution to execute,
file and record any and all documents necessary to
perfect and continue the security interests granted and
assignments made herein, including, but not limited to,
financing statements to be filed with the appropriate
authorities. Neither Secured Party nor its agents
shall be liable for any acts or omissions or for any
error of judgment or mistake of fact or law in its
capacity as such attorney-in-fact. This power of
attorney is coupled with an interest and shall be
irrevocable so long as any Obligation secured hereby
shall remain outstanding;
(e) except for the replacement or exchange in the ordinary
course of business, Borrower will not sell or offer to
sell, assign, pledge, lease or otherwise transfer or
encumber the Collateral, or any interest therein,
without the prior written consent of Secured Party;
(f) Borrower will maintain or cause to be maintained
insurance at all times with respect to the Collateral,
in such form, in such companies, in such amounts and
against such risks as Secured Party may request, such
insurance to be payable to the Secured Party or
Borrower as their interests may appear. All such
policies of insurance shall provide for a minimum of
thirty (30) days' prior written notice of cancellation
or amendment to Secured Party. Borrower shall furnish
Secured Party with certificates or other evidence
satisfactory to Secured Party showing compliance with
the foregoing provisions and, if required by Secured
Party, shall deposit the policies with Secured Party;
(g) except for the security interests granted hereunder and
under the Mortgage, Borrower will keep all Collateral
free from any lien, security interest or encumbrance
and in first-class order and repair and will not waste
or destroy (or suffer or permit the waste or
destruction of) the Collateral or any part thereof;
(h) Borrower will not use (or suffer or permit the use of)
the Collateral in violation of any statute, ordinance
or policy of insurance thereon, and Secured Party may
examine and inspect the Collateral at any reasonable
time or times, wherever located; and
(i) Borrower will pay or cause to be paid promptly when due
all taxes, assessments and other impositions levied
upon the Collateral, or for its use or operation.
3. At its option, Secured Party (if Borrower fails to do
same within ten (10) days after notice is given by Secured Party)
may discharge, when due, taxes, liens, security interest or other
encumbrances at any time affecting the Collateral and may pay for
the maintenance, repair and preservation of the Collateral.
Further, Secured Party, at its option and without notice to
Borrower, may place and pay for insurance on the Collateral upon
Borrower's failure to provide insurance satisfactory to the
Secured Party as provided by this Agreement. To the extent
permitted by applicable law and without limitation of its other
rights and remedies, Secured Party shall be entitled to immediate
reimbursement from the Borrower for any payment made or any
expense incurred by Secured Party pursuant to the foregoing
authorizations, together with interest thereon at the rate
provided in the Note. Until Default (as hereinafter defined),
Borrower may have the possession of the Collateral and may use
same in the operation of the Property in any lawful manner not
inconsistent with any policy of insurance thereon.
4. The occurrence of any of the following events or
conditions shall constitute a "Default" under this Agreement:
(a) any event of default shall occur or exist (and shall
continue beyond applicable grace periods, if any) under
the Mortgage, Note or under the terms of any of the
other Loan Documents;
(b) a default in the performance by Borrower of any of the
other Obligations or of any other covenant, agreement,
or obligation contained or referred to herein, or in
any of the other Loan Documents, to be performed by
Borrower which shall continue for thirty (30) days
after written notice or demand; or
(c) the sale, transfer or encumbrance of any of the
Collateral (except in accordance with the terms of this
Agreement) or the making of any levy, seizure or
attachment thereon.
5. Upon a Default hereunder, and at any time thereafter
(such Default not having been previously cured), Secured Party
shall have all the remedies of a Secured Party under the Uniform
Commercial Code and all other rights and remedies now or
hereafter provided for or permitted by law, including without
limitation, the right to take immediate and exclusive possession
of the Collateral, or any part thereof, and for that purpose
Secured Party may, as far as Borrower can give authority
therefor, with or without judicial process, enter (if this can be
done without breach of the peace) upon any premises on which the
Collateral or any part thereof may be situated. Without
limitation of the foregoing, Secured Party shall be entitled to
hold, maintain, preserve and prepare all of the Collateral for
sale and to dispose of said Collateral, if Secured Party so
chooses, from the Property, provided that Secured Party may
require Borrower to assemble such Collateral and make it
available to Secured Party for disposition at a place to be
designated by Secured Party (which may be other than the
Property) from which the Collateral can be sold or disposed of,
and provided further that for a reasonable period of time prior
to the disposition of such Collateral Secured Party shall have
the right to use same in the operation of the Property. Borrower
will execute and deliver to Secured Party any and all forms,
documents, certificates and registrations as may be necessary or
appropriate to enable Secured Party to sell and deliver good and
clear title to the Collateral to the buyer at the sale as herein
provided. Unless the Collateral is of the type customarily sold
on a recognized market, Secured Party will give Borrower at least
ten (10) days' notice of the time and place of any public sale of
such Collateral or of the time after which any private sale or
any other intended disposition thereof is to be made. The
requirements of reasonable notice shall be met if such notice is
given to the Borrower at least ten (10) days before the time of
the sale or disposition. Secured Party may buy at any public or
private sale. Secured Party shall have the absolute right to
elect to sell the Collateral as a unit with, and not separately
from, the Property and the improvements constructed thereon, or
in individual lots or parcels. The net proceeds realized upon
any disposition of the Collateral, after deduction for expenses
of retaking, holding, preparing for sale, selling and the like
and the reasonable attorneys' fees and legal expenses incurred by
Secured Party, shall be applied towards satisfaction of such of
the Obligations secured hereby, and in such order of application,
as Secured Party may elect. If all of the Obligations are
satisfied, the Secured Party will account to the Borrower for any
surplus realized on such disposition.
6. No waiver by Secured Party of any Default hereunder
shall operate as a waiver of any other Default or of the same
Default on a future occasion. It is agreed and understood that
Secured Party's remedies hereunder shall be limited to the
exercise of such rights and remedies against the Collateral.
Subject to the foregoing, the remedies of the Secured Party
hereunder are cumulative and the exercise of any one or more of
the remedies provided for herein, under the Uniform Commercial
Code or otherwise, shall not be construed as a waiver of any of
the other remedies of Secured Party so long as any part of the
Obligations remain unsatisfied.
7. All of Secured Party's rights hereunder shall inure to
the benefit of its successors and assigns, and all of Borrower's
Obligations shall bind its successors and assigns. All rights of
the Secured Party in, to and under this Agreement and in and to
the Collateral shall pass to and may be exercised by any assignee
thereof. The Borrower agrees that if the Secured Party gives
notice to the Borrower of an assignment of said rights, upon such
notice the liability of the Borrower to the assignee shall be
immediate and absolute. The Borrower will not set up any claim
against the Secured Party as a defense, counterclaim or set-off
to any action brought by any such assignee for any amounts due
hereunder or for possession of the Collateral.
8. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
9. The terms and provisions contained herein shall, unless
the context otherwise requires, have the meanings and be
construed as provided in the Uniform Commercial Code of the State
of Wisconsin.
10. All notices demands and requests given or required to
be given hereunder shall be in writing. All such notices,
demands and requests by Secured Party to Borrower shall be deemed
to have been properly given if served in person or if sent by
United States registered or certified mail return, receipt
requested, postage prepaid, addressed to Borrower at:
Decade Companies Income Properties
Brookfield Lakes Corporate Center
18000 West Sarah Lane
Brookfield, Wisconsin 53005
Attention: Jeffrey Keierleber
With a copy to: Mary Fertl
Quarles & Brady
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-4497
or to such other address as the party to be addressed may from
time to time designate by written notice to Secured Party given
as herein required. All notices, demands and requests by
Borrower to Secured Party shall be deemed to have been properly
given if served in person or if sent by United States registered
or certified mail, postage prepaid, addressed to Secured Party
at:
Home Savings of America, F.A.
P. 0. Box 7075
Pasadena, California 91109-7075
With a copy to: Sean P. Kennedy
Portes, Sharp, Herbst, Kravets & Fox, Ltd.
333 West Wacker Drive
Suite 500
Chicago, Illinois 60606
or to such other address as the party to be addressed may from
time to time designate by written notice to Borrower given as
herein required. Notices, demands and requests given by mail in
the manner aforesaid shall be deemed sufficiently served or given
for all purposes hereunder on the date such notice, demand or
request shall be deposited in the mails.
11. Borrower hereby further agrees for itself and for its
successors and assigns that: (a) this Agreement does not
constitute a waiver or partial waiver by Secured Party of any of
its rights under the Mortgage or other Loan Documents, and (b)
this Agreement does not in any way release Borrower from its
obligation to comply with every term, provision, condition,
covenant, agreement, representation, warranty and obligation
provided for in the Loan Documents.
12. Secured Party's rights hereunder are subject to the
terms and provisions of that certain Nonrecourse Agreement
entered into by and between Secured Party and Borrower dated
November 22, 1989.
IN WITNESS WHEREOF, this Agreement has been executed as of
the day and year first above written.
SECURED PARTY: BORROWER:
HOME SAVINGS OF AMERICA, DECADE COMPANIES INCOME
F.A., a federal savings and PROPERTIES - A LIMITED
loan association PARTNERSHIP, a Wisconsin
limited partnership, by
Decade Companies, a
By: __________________________ Wisconsin general
Raymond Rissmann, its partnership, its sole
Vice President general partner
By:___________________________
Jeffrey Keierleber, a
general partner
<PAGE>
EXHIBIT A
Legal Description
Parcel 1:
Lot 2, Certified Survey Map 1872, recorded in Vol. 7 of Certified
Survey Maps, page 312, #1450832, in the City of Madison, Dane
County, Wisconsin
Parcel 2:
Lot 1, Certified Survey May 2982, recorded in Vol. 11 of
Certified Survey Maps, page 399, #1593404, in the City of
Madison, Dane County, Wisconsin
Parcel 3:
That certain Easement Declaration recorded in Vol. 997 of
Records, page 299, #1593405; re-recorded in Vol. 1850 of Records,
page 4, #1662733, as amended by that certain First Amendment to
Easement Declaration dated ___________________, 1989, recorded in
Vol. ___ of Records, page _______, #_______________________;
Parcel 4:
That certain Recreational Easement Agreement dated
_______________, 1989, recorded in Vol. ___ of Records, page
____, #_____________.
EXHIBIT 10.5
THIS INSTRUMENT PREPARED BY AND TO BE
RETURNED TO:
SEAN P. KENNEDY, ESQ.
PORTES, SHARP, HERBST, KRAVETS & FOX, LTD.
333 West Wacker Drive, Suite 500
Chicago, Illinois 60606
(312) 372-1555
MORTGAGE FOR ADJUSTABLE INTEREST RATE LOAN
THIS MORTGAGE FOR ADJUSTABLE INTEREST RATE LOAN ("Mortgage")
is made this 22nd day of November, 1989, between DECADE COMPANIES
INCOME PROPERTIES - A LIMITED PARTNERSHIP, a Wisconsin limited
partnership, whose address is Brookfield Lakes Corporate Center,
18000 West Sarah Lane, Brookfield, Wisconsin 53005 ("Mortgagor"),
and HOME SAVINGS OF AMERICA, F.A., a federally chartered savings
and loan association, whose address is P.O. Box 7075, Pasadena,
California, 91109-7075 ("Lender").
WITNESSETH: Mortgagor hereby grants, conveys and mortgages
to Lender the real property legally described on the legal
description rider attached hereto as Exhibit A, which real
property is located in Madison, Dane County, Wisconsin; together
with all interest which Mortgagor now has or may hereafter
acquire in or to said real property, and in and to: (a) all
easements and rights of way appurtenant thereto, and all
heretofore or hereafter vacated alleys and streets abutting said
real property; (b) all buildings, structures, tenements,
improvements, fixtures and appurtenances now or hereafter placed
thereon, including, but not limited to, all fixtures, apparatus,
machinery, equipment, engines, boilers, incinerators, 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 said real property, including, but not limited
to, those for the purposes of supplying or distributing air
cooling, air conditioning, gas, electricity, water, air,
refrigeration, ventilation, laundry, drying, dishwashing, garbage
disposal and other services; and all related machinery and
equipment, fire prevention and extinguishing apparatus, security
and access control apparatus, plumbing, bathtubs, water heaters,
water closets, sinks, ranges, stoves, refrigerators, dishwashers,
disposals, washers, dryers, awnings, storm windows, storm doors,
screens, blinds, shades, curtains and curtain rods, mirrors,
PROPERTY STREET ADDRESS: 237-293 and 301-417 North Thompson
Drive, Madison, Wisconsin
PERMANENT TAX PARCEL NUMBER(S): 0710-032-1503-7
0710-032-1502-9
cabinets, panelling, rugs, attached floor coverings, furniture,
pictures, antennae, trees and plants, and pool equipment, it
being intended and agreed that such items, including replacements
and additions thereto be conclusively deemed to be affixed to and
be part of the real property that is conveyed hereby; (c) all
cabinets, shelving, furniture, displays, lights, machinery and
other trade fixtures attached or otherwise installed on said real
property used for a trade or business, it being intended and
agreed that such items, including replacements and additions
thereto, be conclusively deemed to be affixed to and be part of
the real property that is conveyed hereby; (d) all royalties,
minerals, oil and gas rights and profits, water and water rights
(whether or not appurtenant) owned by Mortgagor and shares of
stock pertaining to such water or water rights, ownership of
which affects said real property; (e) the rents, income, issues,
and profits of all properties covered by this Mortgage; and (f)
all accounts, accounts receivable, chattel paper, insurance
claims, condemnation awards, general intangibles, contract
rights, instruments, documents and other rights of Mortgagor
arising out of or related to Mortgagor's ownership of such
property, all of which is collectively referred to herein as the
"Property." Mortgagor agrees to execute and deliver, from time
to time, such further instruments as may be requested by Lender
to confirm the lien of this Mortgage on any such Property.
Mortgagor absolutely and irrevocably grants, transfers and
assigns to Lender the rents, income, issues, and profits of all
Property covered bs this Mortgage.
FOR THE PURPOSE OF SECURING:
(1) The payment of the sum of FOUR MILLION ONE HUNDRED
THOUSAND AND NO/100 DOLLARS ($4,100,000.00), together
with interest thereon, according to the terms of a
certain Promissory Note Adjustable Interest Rate
("Note") of even date herewith made by Mortgagor
payable to Lender or order, and all modifications,
extensions or renewals thereof:
(2) The payment of such sums as may be incurred, paid out,
or advanced by Lender, or may otherwise be due to
Lender, under any provision of this Mortgage or said
Note and all modifications, extensions or renewals
hereof or thereof;
(3) The performance of each agreement of Mortgagor
contained herein or incorporated herein by reference or
contained in any papers executed by Mortgagor relating
to the loan secured hereby;
(4) The performance, if the loan secured hereby or any part
thereof is for the purpose of constructing improvements
on the Property, of each provision or agreement of
Mortgagor contained in any construction loan agreement
or other agreement between Mortgagor and Lender
relating to such Property;
(5) The performance and keeping by Mortgagor of each of the
covenants and agreements required to be kept and
performed by Mortgagor pursuant to the terms of any
lease and any and all other instruments creating
Mortgagor's interest in or defining Mortgagor's right
in respect to the Property:
(6) Compliance by Mortgagor with each and every monetary
provision to be performed by Mortgagor under any
Declaration of Covenants, Conditions and Restrictions
pertaining to the Property or any Declaration of
Condominium Ownership and upon written request of
Lender, the enforcement by Mortgagor of any covenant to
pay maintenance or other charges:
(7) The performance of all agreements of Mortgagor to pay
fees and charges to Lender whether or not herein set
forth; and
(8) The payment of charges, as allowed by law when such
charges are made, for any statement regarding the
obligation secured hereby.
It is expressly understood that there are no agreements for any
future advances under this Mortgage.
TO PROTECT THE SECURITY OF THIS MORTGAGE, MORTGAGOR AGREES:
(1) Construction of Improvements. To complete in good and
workmanlike manner any building or improvement or
repair relating thereto which may be begun on such
Property or contemplated by the loan secured hereby, to
pay when due all costs and liabilities incurred
therefor, and not to permit any mechanic's lien against
the Property, nor any stop notice against any loan
proceeds. Mortgagor also agrees, anything in this
Mortgage to the contrary notwithstanding: (a) to
commence work promptly and to complete any proposed
improvements promptly; (b) to complete same in
accordance with plans and specifications as approved by
Lender; (c) to allow Lender to inspect such Property at
all times during construction; (d) to replace any work
or materials unsatisfactory to Lender, within fifteen
(15) days after written notice from Lender of such
fact, which notice may be given to Mortgagor by
certified mail, as herein provided.
(2) Repair and Maintenance of Property. To keep the
Property in good condition and repair, not to
substantially alter, remove or demolish any buildings
thereon, to restore promptly and in good workmanlike
manner any buildings which may be damaged or destroyed
including, without restricting the generality of the
foregoing, damage from termites and earth movement,
fire or other casualty, to pay when due all claims for
labor performed and materials furnished in connection
with such Property and not to permit any mechanic's
lien against such Property, to comply with all laws
affecting such Property or requiring any alterations or
improvements to be made thereon; not to commit or
permit waste thereon; not to commit, suffer or permit
any act upon such Property in violation of law; to
cultivate, irrigate, fertilize, fumigate and prune and
to do all other acts that from the character or use of
such Property may be reasonably necessary to keep such
Property in the same condition (reasonable wear and
tear excepted) as of the date of this Mortgage.
(3) Fire and Casualty Insurance. To provide and maintain
in force, at all times, fire and extended coverage
insurance with respect to such Property in an amount
equivalent to the full replacement cost of the
improvements but not less than the face amount of this
Mortgage. Each policy of such insurance shall be in
form and content and by such companies, as may be
reasonably satisfactory to Lender, with loss payable in
favor of Lender, and shall be delivered to, and remain
in the possession of Lender. Mortgagor shall furnish
Lender with written evidence showing payment of all
premiums therefor. At least thirty (30) days prior to
the expiration of any insurance policy, a policy
renewing or extending such expiring insurance shall be
delivered to Lender with written evidence showing
payment of the premium therefor, and, in the event that
any such insurance policy and evidence of payment of
the premium are not so delivered to Lender, Mortgagor
by executing this Mortgage specifically authorizes
Lender in Lender's sole discretion to obtain such
insurance from time to time at Mortgagor's cost.
Lender may, from time to time, require insurance
appraisals or other evidence that the insurance is
equivalent to the full replacement cost of the
improvements and may require increased insurance to
provide full replacement cost coverage or to cover any
increased loan amount due to negative amortization.
Lender shall not be chargeable with obtaining or
maintaining such insurance or for any insolvency of any
insurer or insurance underwriter. Lender, from time to
time, may furnish to any insurance agency or company,
or any other person, any information contained in or
extracted from any insurance policy theretofore
delivered to Lender pursuant hereto, and any
information concerning the loan secured hereby.
Mortgagor hereby assigns to Lender all unearned
premiums on any such policy, and agrees that any and
all unexpired insurance shall inure to the benefit of,
and pass to, the purchaser of the property conveyed at
any sale held hereunder pursuant to the foreclosure of
this Mortgage.
(4) Rent Insurance and Additional Insurance. Mortgagor
shall also maintain, at its sole cost and expense, rent
insurance from loss of income from the improvements by
reason of any hazard covered by the insurance covered
by Paragraph 3 above in an amount sufficient to avoid
any co-insurance penalties and in any case, for one
year's gross rental from said improvements,
comprehensive liability including property damage
insurance in the face amount of at least One Million
Dollars ($1,000,000.00), which insurance shall name
Lender as an additional insured. Evidence that such
insurance is in full force and effect shall be provided
to Lender and all such policies shall provide that
Lender is to receive at least thirty (30) days written
notice of any cancellation. Mortgagor shall also
provide Lender with evidence that workmen's
compensation insurance is maintained for all persons
employed in the operation of the Property.
(5) Taxes and Other Sums Due. To pay, satisfy and
discharge: (a) at least ten (10) days before
delinquency, all general and special taxes affecting
such Property; (b) when due, all special assessments
for public improvements; and (c) on demand of Lender
but in no event later than the date such amounts become
due (i) all encumbrances, charges and liens, with
interest, on such Property, or any part thereof, which
are, or appear to Lender to be prior to or superior
hereto, (ii) all costs, fees and expenses of making
such demand or removing such liens whether or not
described herein, (iii) such other charges as the
Lender may deem reasonable for services rendered by
Lender and furnished at the request of Mortgagor or any
successor in interest to Mortgagor, (iv) if the
Property includes a leasehold estate, all payments and
obligations required of the Mortgagor or its successor
in interest under the terms of the instrument or
instruments creating such leasehold, and (v) all
payments and monetary obligations required of the owner
of the Property under any declaration of covenants or
conditions or restrictions pertaining to the Property
or any modification thereof. Should Mortgagor fail to
make any such payment, Lender without contesting the
validity or amount may elect to make or advance such
payment together with any costs, expenses, fees, or
charges relating thereto and to add such amounts to the
amounts due under this Mortgage and said Note.
Mortgagor agrees to notify Lender immediately upon
receipt by Mortgagor of notice of any increase in the
assessed value of such Property. Mortgagor agrees to
notify Lender and, if required by law, appropriate
taxing authorities, immediately upon the happening of
any event which does or may affect the value of the
Property, the amount or basis of the Property, or the
availability of any exemption to which Mortgagor is or
may be entitled.
In the event of the passage of any law deducting
from the value of real property for the purposes of
taxation any lien thereon, or changing in any way the
laws for the taxation of mortgages or debts secured by
mortgages for state or local purposes, or the manner of
the collection of any such taxes including, but not
limited to, the postponement of the payment of all or
any part of any real or personal property taxes, so as
to affect this Mortgage, the holder of the Note shall
have the right to declare the entire principal sum and
the interest due on a date to be specified by not less
than sixty (60) days written notice to be given to
Mortgagor by Lender; provided, however, that such
election shall be ineffective if Mortgagor is permitted
by law to pay the whole of such tax in addition to all
other payments required hereunder and if, prior to such
specified date, does pay such tax and agrees to pay any
such tax when hereafter levied or assessed against such
property, and such agreement shall constitute a
modification of this Mortgage.
(6) Impounds. In the event of a default hereunder, and if
Lender shall so request, to pay to Lender in addition
to any other payments required hereunder, monthly
advance installments, as estimated by Lender, for
taxes, assessments, insurance premiums, ground rents or
other obligations secured by this Mortgage (hereinafter
in this paragraph referred to as "such obligations")
for the purpose of establishing a fund to insure
payment when due, or before delinquency, of any or all
of such obligations required to be paid as to the
Property. If the amounts paid to Lender under the
provisions of this paragraph are insufficient to
discharge the obligations of Mortgagor to pay such
obligations as the same become due or delinquent,
Mortgagor shall pay to Lender, upon Lenders demand,
such additional sums as are necessary to pay such
obligations. All monies paid to Lender under this
paragraph may be intermingled with other monies of
Lender and shall not bear interest, except as required
by law. Lender may pay such obligations whether before
or after they become due and payable. In the event of
a default in the payment of any monies due on the
indebtedness secured hereby, default of any obligation
secured hereby, or default in the performance of any of
the covenants and obligations of this Mortgage, then
any balance remaining from monies paid Lender under the
provisions of this paragraph may, at the option of
Lender, be applied to the payment of principal,
interest or other obligations secured hereby in lieu of
being applied to any of the purposes for which the
impound account is established. Lender will make such
reports of impounds as are required by law.
(7) Assignment of Awards and Damages to Lender. All sums
due, paid, or payable to Mortgagor or any successor in
interest to Mortgagor of such Property whether by way
of judgment, settlement or otherwise: (a) for injury
or damage to such Property; (b) in connection with the
transaction financed by the loan secured hereby; or (c)
in connection with any condemnation for public use of
or injury to such Property, or any part thereof, is
hereby assigned and shall be paid to Lender. Lender
shall be entitled, at its option, to commence,
intervene in, appear in and prosecute in its own name,
any action or proceeding or to make any compromise or
settlement, in connection with any such taking or
damage. Mortgagor agrees to execute such further
assignments of any compensation, award, damage, rights
of action and proceeds as Lender may require.
(8) Disposition of the Proceeds of any Insurance Policy,
Condemnation or other Recovery.
(a) Proceeds of Insurance. The Mortgagor will give
the Lender prompt notice of any damage to or
destruction of the Property, and:
(i) In the case of loss covered by policies of
insurance, the Lender (or, after entry of
decree of foreclosure, the purchaser at
foreclosure sale or creditor, as the case may
be) is hereby authorized at its option
either: (a) to settle and adjust any claim
under such policies without the consent of
the Mortgagor; or (b) allow the Mortgagor to
agree with the insurance company or companies
on the amount to be paid upon the loss;
provided, that the Mortgagor may itself
adjust losses aggregating not in excess of
Fifty Thousand Dollars ($50,000.00), and
further that in any case the Lender shall,
and is hereby authorized to, collect and
receipt for any insurance proceeds; and the
expenses incurred by the Lender in the
adjustment and collection of insurance
proceeds shall be so much additional
indebtedness hereby secured, and shall be
reimbursed to the Lender upon demand;
(ii) In the event of any insured damage to or
destruction of the Property or any part
thereof (herein called an "insured casualty")
and if, in the reasonable judgment of the
Lender, the Property can be restored to an
architectural and economic unit of the same
character and value as the same was prior to
the insured casualty, and adequately securing
the outstanding balance of the indebtedness
hereby secured and the insurers do not deny
liability to the insured, then, if no events
of default as hereinafter defined shall have
occurred and be then continuing, the proceeds
of insurance shall be applied to reimburse
the Mortgagor for the cost of restoring,
repairing, replacing or rebuilding (herein
generally called "restoring") the Property or
any part thereof subject to an insured
casualty, as provided for in Section 8(c)
hereof;
(iii) If in the reasonable judgment of the Lender
the Property cannot be restored to an
architectural and economic unit as provided
for in Subsection (a)(ii) above, then at any
time from and after the insured casualty,
upon sixty (60) days' written notice to
Mortgagor, Lender may declare the entire
balance of the indebtedness hereby secured to
be due and payable at the expiration of such
sixty (60) day period;
(iv) Except as provided for in Subsection (a) (ii)
of this Paragraph 8, Lender shall apply the
proceeds of insurance (including amounts not
required for the restoring effected in
accordance with Subsection (a) (ii) above)
consequent upon any insured casualty upon the
indebtedness hereby secured, in such order or
manner as the Lender may elect;
(v) In the event that proceeds of insurance, if
any, shall be made available to the Mortgagor
for the restoring of the Property, Mortgagor
hereby covenants to restore the same to be of
at least equal value and of substantially the
same character as prior to such damage or
destruction; all to be effected in accordance
with plans and specifications to be first
submitted to and approved bs the Lender; and
(vi) Any portion of the insurance proceeds
remaining after payment in full of the
indebtedness hereby secured shall be paid to
Mortgagor or as ordered by a court of
competent jurisdiction.
(b) Condemnation. The Mortgagor will give Lender
prompt notice of any proceeding instituted or
threatened, seeking condemnation or taking by
eminent domain or any like process (hereby
generally called a "taking") of all or any part of
the Property including damages to grade, and;
(i) Mortgagor hereby assigns, transfers and sets
over unto Lender the entire proceeds of any
award received from any taking;
(ii) If in the reasonable judgment of the Lender
the Property can be restored to an
architectural and economic unit of the same
character and not less valuable than the
Property prior to such taking and adequately
securing the outstanding balance of the
indebtedness hereby secured, then if no event
of default, as hereinafter defined, shall
have occurred and be then continuing, the
award shall be applied to reimburse the
Mortgagor for the cost of restoring the
portion of the Property remaining after such
taking, as provided for in Section 8(c)
hereof;
(iii) If in the reasonable judgment of the Lender
the Property cannot be restored to an
architectural and economic unit as provided
for in Subsection (b) (ii) above, then at any
time from and after the taking, upon sixty
(60) days' written notice to Mortgagor,
Lender may declare the entire balance of the
indebtedness hereby secured to be due and
payable at the expiration of such sixty (60)
day period;
(iv) Except as provided for in Subsection (b) (ii)
of this Paragraph 8, Lender shall apply any
award (including the amount not required for
restoration effected in accordance with
Subsection (b) (ii) above) upon the
indebtedness hereby secured in such order or
manner as Lender may elect;
(v) In the event that any award shall be made
available to the Mortgagor for restoring the
portion of the Property remaining after a
taking, Mortgagor hereby covenants to restore
the remaining portion of the Property to be
of at least equal value and of substantially
the same character as prior to such taking;
all to be effected in accordance with plans
and specification to be first submitted to
and approved by Lender; and
(vi) Any portion of any award remaining after
payment in full of the indebtedness hereby
secured shall be paid to Mortgagor or as
ordered by a court of competent jurisdiction.
(c) Disbursement of Insurance Proceeds and
Condemnation Award. In the event the Mortgagor is
entitled to reimbursement out of insurance
proceeds or any award held by the Lender, such
proceeds shall be disbursed from time to time upon
the Lender being furnished with satisfactory
evidence of the estimated cost of completion of
the restoration (with funds or assurances
satisfactory to the Lender that such funds are
available sufficient in addition to the proceeds
of insurance or award, to complete the proposed
restoration) and with such architect's
certificates, waivers of lien, contractor's sworn
statements and such other evidence of costs and of
payment as the Lender may reasonably require and
approve; and the Lender may, in any event, require
that all plans and specifications for such
restoration be submitted to and approved by Lender
prior to commencement of work. No payment made
prior to the final completion of the restoration
shall exceed ninety percent (90%) of the value of
the work performed from time to time; funds other
than proceeds of insurance or the award shall be
disbursed prior to disbursement of such proceeds;
and at all times the undisbursed balance of such
proceeds remaining in the hands of Lender,
together with funds deposited for the purpose or
irrevocably committed to the satisfaction of the
Lender by or on behalf of the Mortgagor for the
purpose of restoring the Property, shall be at
least sufficient in the reasonable judgment of the
Lender to pay for the cost of completion of the
restoration, free and clear of all liens or claims
for lien. Lender may require that all funds
disbursed under this Paragraph 8(c) shall be
disbursed through an escrow of a title insurance
company selected by Lender which shall pass on the
sufficiency of all lien waivers. The escrow costs
of any such title insurance company shall be
included in the cost of reconstruction and paid
from such funds.
(d) Awards for Injury or Damages in Connection with
the Transaction Financed by the Loans Secured
Hereby. The amount received by Lender respecting
the Property for injury or damage in connection
with the transaction financed by the loan secured
hereby may, at the sole option of the Lender, be
applied by Lender upon the indebtedness secured
hereby and in such order as Lender may determine
or, without reducing the indebtedness secured
hereby, may be released to Mortgagor, or may be
partially applied by Lender as aforesaid and
partially released to Mortgagor. No application,
use or release shall cure or waive any default or
notice of default hereunder or invalidate any act
done Pursuant to such notice of default.
(e) Interest on Proceeds of Insurance, Condemnation
Award or Other Recovery. So long as no event of
default shall have occurred and be continuing, any
proceeds of insurance or any award or other
recovery, as the case may be, or funds of
Mortgagor held in the hands of Lender for the
purpose of restoration as specified in this
Paragraph 8, shall be placed in an interest
bearing account bearing the highest rate of
interest available, giving consideration to the
amount of deposit and the requirement that funds
on deposit be available upon demand (herein called
the "disbursement account") under the control of
the Lender, or its designated agent, at such bank
or savings and loan association including the
Lender, or other depository satisfactory to
Lender, and in connection therewith:
(i) Withdrawal from the disbursement account
shall be made only by the Lender, or its
designated servicing or escrow agent as the
case may be;
(ii) Subject to the provisions of Subsection 8(e)
(iii), funds in the disbursement account from
time to time shall be applied solely for the
purpose of paying or reimbursing Mortgagor
for the cost of restoring as provided for in
this Paragraph 8;
(iii) Funds in the disbursement account shall be
and hereby are pledged as additional
collateral and security for the indebtedness
hereby secured, and, upon the occurrence of
any event of default, such funds may be
applied by Lender upon the indebtedness
hereby secured in such order and manner as
the Lender may elect; and
(iv) Prior to the occurrence of any event of
default, interest earned upon the
disbursement account shall accrue to
Mortgagor and to the extent not required to
pay for the cost of restoring in accordance
with the provisions of this Paragraph 8,
shall be paid to Mortgagor upon completion of
the restoring; provided, that upon the
occurrence of any event of default the Lender
may in its discretion withdraw all or any
funds in the disbursement account and apply
the same upon the indebtedness hereby secured
in such order and manner as Lender may in its
sole discretion determine.
(9) Litigation. Mortgagor shall defend this Mortgage in
any action or proceeding purporting to affect the
Property whether or not it affects the security hereof
and file and prosecute all necessary claims and actions
to prevent or recover for any damage to or destruction
of the Property; and Lender is hereby authorized,
without obligation so to do, to commence, appear in, or
defend any such action, whether brought by or against
Mortgagor or Lender, or with or without suit, to
exercise or enforce any other right, remedy, or power
available or conferred hereunder, whether or not
judgment be entered in any action or proceeding, and
retain counsel therein, and take such action therein,
as either may be advised, and may, upon ten (10) days
written notice to Mortgagor, settle, compromise or pay
the same or any other claims and, in that regard and
for any of such purposes, may expend and advance such
sums of money as either may deem necessary. Whether or
not Mortgagor so appears or defends, all costs and
expenses of Lender, including without limitation costs
of evidence of title, reasonable attorneys' fees,
transcript costs and expenses of preparing for or
appearing in any such action or proceeding, in which
Lender may appear as in this paragraph; provided,
irrespective of whether the interest of Lender in the
Property is directly questioned by such action,
including but not limited to any action for the
condemnation or partition of the Property and any suit
brought by Lender to foreclose this Mortgage, shall be
additional indebtedness secured hereby due and payable
on Lender's demand.
(10) Lender's Right to Make Advances Etc. Should Mortgagor
fail to make any payment, or to do any act as provided
in this Mortgage, or fail to perform any obligation
secured by this Mortgage, after notice and applicable
grace period provided in Paragraph 17 hereof, or do any
act Mortgagor agreed not to do, Mortgagor shall be in
default under this Mortgage. Lender may, but without
obligation so to do and without notice or demand upon
Mortgagor and without releasing Mortgagor from any
obligation hereof, and without contesting the validity
or amount of the same: (a) make or do the same in such
manner and to such extent as it may deem necessary to
protect the security hereof, Lender being authorized to
enter upon the property for such purposes; (b) pay,
purchase, contest or compromise any encumbrance,
charge, or lien, which in Lender's judgment is or
appears to be prior or superior hereto; and (c) in
exercising any such power, pay necessary expenses.
(11) Sums Advanced to Bear Interest and To Be Added to
Indebtedness. Mortgagor agrees to pay immediately upon
demand any sums advanced or paid by Lender under any
clause or provision of this Mortgage or any other loan
document executed in connection with the indebtedness
evidenced by the Note and secured hereby. Any such
sum, until so repaid, shall be added to the
indebtedness secured hereby and bear interest from the
date it was advanced or paid at the same interest rate
as the Note compounded monthly and shall be secured by
this Mortgage. Mortgagor further agrees that Lender
shall be subrogated to the lien of any mortgage or
other encumbrance, satisfied in whole or in part by any
advances made by Lender hereunder.
(12) Application of Funds. Lender shall have the right at
its sole discretion to direct the manner in which
payments or proceeds (other than principal and interest
payments under the Note) shall be applied upon or
allocated among the various items comprising
Mortgagor's indebtedness or obligations under this
Mortgage or any other loan document.
(13) Right of Lender to Declare All Sums Due on Any
Transfer, Etc. Lender shall have the right, at its
option, to declare any indebtedness and obligations
secured hereby, irrespective of the maturity date
specified in any note or agreement evidencing the same,
due and payable within thirty (30) days after such
declaration if: (a) Mortgagor or any successor in
interest to Mortgagor of the Property sells, enters
into a contract to sell on a land or installment basis,
conveys, alienates or mortgages the Property or any
part thereof, or suffers its title or any interest
therein to be divested, whether voluntary or
involuntarily, or leases the Property, or any part
thereof, for a term of three (3) years or more, or
changes or permits to be changed the character or use
of the Property, or drills or extracts or enters into a
lease for the drilling for or extracting of oil, gas or
other hydrocarbon substance or any mineral of any kind
or character on the Property; (b) Mortgagor is a
partnership and the interest of a general partner is
assigned or transferred; (c) Mortgagor or the
beneficial owners of Mortgagor is a corporation or
partnership, the managing general partner of which is a
corporation and more than twenty-five percent (25%) of
the stock of such corporation is sold, transferred or
assigned during a twelve (12) month period; (d)
Mortgagor is a trust and there is a change of
beneficial interest with respect to more than
twenty-five percent (25%) of such beneficial interest
or said beneficial interest is assigned to another
party; (e) Mortgagor has made any material
misrepresentation or failed to disclose any material
fact in those certain financial and other written
representations and disclosures made by Mortgagor in
order to induce Lender to enter into the transaction
evidenced by the Note or notes or agreements which this
Mortgage secures; (f) Decade Companies Income
Properties, a Wisconsin limited partnership ("DCIP")
either (i) causes or permits the transfer of a general
partnership interest in DCIP or (ii) sells, enters into
a contract of sale, conveys or otherwise causes or
permits, whether voluntarily or involuntarily, a
transfer of title in or to the real property described
in Exhibit B hereto ("Phase IV Property"), or any part
thereof or interest therein; (g) Decade's Monthly
Income and Appreciation Fund, a Wisconsin limited
partnership ("DMIAF") either (i) causes or permits the
transfer or assignment of a general partnership
interest in DMIAF or (ii) sells, enters into a contract
of sale, conveys or otherwise causes or permits,
whether voluntarily or involuntarily, a transfer of
title in or to the real property described in Exhibit C
hereto ("Phase I Property"), or any part thereof or
interest therein; (h) either the Phase I Property or
Phase IV Property ceases to be managed and operated by
Decades Properties, Inc., a Wisconsin corporation; or
(i) Jeffrey Keierleber sells, enters into an agreement
to sell, conveys, alienates, mortgages or otherwise
encumbers his general partnership interest in and to
Decade Companies, a Wisconsin general partnership.
(14) No Waivers by Lender. No waiver by Lender of any right
under this Mortgage shall be effective unless in
writing. Waiver by Lender of any right granted to
Lender under this Mortgage or of any provision of this
Mortgage as to any transaction or occurrence shall not
be deemed a waiver as to any future transaction or
occurrence. By accepting payment of any sum secured
hereby after its due date or by making any payment or
performing any act on behalf of Mortgagor, or by adding
any payment so made by Lender to the indebtedness
secured hereby, Lender does not waive its right to
require prompt payment when due of all other sums so
secured or to require prompt performance of all other
acts required hereunder, or to declare a default for
failure so to pay.
(15) Modification in Writing. This Mortgage cannot be
changed or modified except as otherwise provided in
this Mortgage or by agreement in writing signed by
Mortgagor, or any successor in interest to Mortgagor,
and Lender.
(16) Remedies. No remedy herein provided shall be exclusive
of any other remedy herein or now or hereafter existing
by law, but shall be cumulative. Every power or remedy
hereby given to Lender or to which it may be otherwise
entitled, may be exercised from time to time and as
often as may be deemed expedient, and Lender may pursue
inconsistent remedies. If Lender holds any additional
security for any obligation secured hereby, it may
enforce the sale thereof at its option, either before,
contemporaneously with, or after the order of
foreclosure is entered or sale is made hereunder, and
on any event of default of Mortgagor. Lender may, at
its option, offset against any indebtedness owing by it
to Mortgagor, the whole or any part of the indebtedness
secured hereby. Lender is hereby authorized and
empowered at its option, without any obligation to do
so, and without affecting the obligations hereof, to
apply toward the payment of any indebtedness secured
hereby and of the Mortgagor to the Lender, any and all
sums or money which the Lender may have in its
possession or under its control, including without
limiting the generality of the foregoing, the
indebtedness evidenced by an escrow or trust funds. In
order to assure the definiteness and certainty of the
rights and obligations herein provided, Mortgagor
waives any and all rights of offset of claims, and no
offset shall relieve Mortgagor from paying installments
on the obligations secured hereby as they become due.
(17) Events of Default. In the event that Mortgagor shall
fail to pay the monthly installments due under the Note
within ten (10) days of the due date, or in the event
that Mortgagor shall fail to pay any monetary amounts
demanded, in writing, by Lender, pursuant to the
provisions of this Mortgage or other loan documents
within thirty (30) days of such demand, or in the event
that Mortgagor shall fail to perform any obligations or
conditions required of it, pursuant to this Mortgage,
after thirty (30) days prior written notice of such
failure, Lender may treat any such failure as an event
of default entitling Lender to declare all indebtedness
due under this Mortgage and the Note secured hereby
immediately due and payable without further notice or
demand. Provided that if a non-monetary default cannot
with reasonable diligence be cured within said thirty
(30) day period and Mortgagor has commenced the cure
and is proceeding diligently, the time before the right
of acceleration accrues shall be extended to the time
that with reasonable diligence such cure can be
effected.
(18) Foreclosure of Mortgage. When the indebtedness hereby
secured shall become due whether by acceleration or
otherwise, the Lender shall have the right to foreclose
the lien hereof. In any suit to foreclose the lien
hereof, there shall be allowed and included as
additional indebtedness in the order of foreclosure or
sale all expenditures and expenses which may be paid or
incurred by or on behalf of Lender for reasonable
attorneys' fees, appraisers' fees, outlays for
documentary and expert evidence, stenographer's
charges, publication cost and costs of procuring all
abstracts of title or commitments for title insurance.
Such fees, charges and costs may be estimated as to
items to be expended after entry of the order of
foreclosure or sale as Lender may deem 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 such property. All expenditures and expenses
of the nature mentioned in this paragraph shall become
so much additional indebtedness secured hereby and
shall be immediately due and payable with interest
thereon at the rate specified in the Note secured
hereby. Such expenditures and expenses shall include
expenditures made in connection with: (a) any
proceeding to which Lender shall be a party, either as
plaintiff, claimant or defendant, by reason of this
Mortgage or any indebtedness hereby secured; (b)
preparation for the commencement of any suit for
foreclosure hereof after accrual of such right to
foreclose whether or not actually commenced; (c)
preparations for the defense of any threatened suit or
proceeding which might affect the Property or the
security hereof, whether or not actually commenced; (d)
any efforts for collection of any past due indebtedness
secured hereby. The proceeds of any foreclosure sale
of the Property shall be distributed and applied in the
following order of priority: first on account of all
costs and expenses incident to the foreclosure
proceedings, including all such items as are mentioned
in this paragraph; second, all other items which under
the terms hereof constitute indebtedness secured by
this Mortgage; third, any surplus to Mortgagor, its
successors or assigns, as their rights may appear.
(19) Appointment of Mortgagee in Possession or Receiver.
Upon or at any time after the filing of a complaint to
foreclose this Mortgage, the court in which such
complaint is filed may appoint Lender as mortgagee in
possession or may appoint a receiver of the Property.
Such appointment may be made either before or after
sale, without notice, without regard to the solvency or
insolvency at the time of application of the person or
persons, if any, liable for the payment of the
indebtedness secured hereby and without regard to the
then value of the Property or whether the same shall be
then occupied as a homestead or not. Such receiver or
mortgagee in possession shall have power to collect the
rents, issues and profits of the Property during the
pendency of such foreclosure suit, as well as during
any further times when Mortgagor, its successors or
assigns, 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 Property
during the whole of said period. The court from time
to time may authorize the receiver or Mortgagee in
possession to apply the net income held by either of
them in payment in whole or in part of the indebtedness
and other sums secured hereby, or in payment of any
tax, special assessment or other lien which may be or
become superior to the lien hereof or superior to an
order foreclosing this Mortgage, provided such
application is made prior to foreclosure sale. In case
of a judicial sale, the Property, or so much thereof as
may then be affected by this Mortgage, may be sold in
one parcel.
(20) Sale by Lender. Upon the happening of an event of
default, as defined in Paragraph 17 hereof, then and in
every such case Lender, in its discretion, may, to the
extent permitted by law, with or without entry,
personally or by attorney, sell to the highest bidder
all or any part of the Property, and all right, title,
interest, claim, and demand therein, and the right of
redemption thereof, in one lot as an entirety, or in
separate lots, as Lender may elect, and in one sale or
in any number of separate sales, held at one time or at
any number of times, which said sale or sales shall be
made at public auction at such place in the county in
which the Property to be sold is situated and at such
time and upon such terms as may be fixed by Lender and
briefly specified in the notice of such sale or sales.
Any sale by Lender may, nevertheless, at its option, be
made at such other place or places, and in such other
manner, as may now or hereafter be authorized by law.
Any such sale may, at the option of Lender, be made
subject to the rights of any tenant or tenants of the
Property. Notice of any sale by Lender pursuant to the
provisions hereof shall state the time and place when
and where the same is to be made and shall contain a
brief general description of the Property to be sold
and shall be sufficiently given if given in a manner
provided by law. Upon completion of any sale or sales,
as specified above, Lender shall transfer and deliver,
or cause to be transferred and delivered, to the
accepted purchaser or purchasers, the Property so sold,
and, to the extent permitted by law, Lender is hereby
irrevocably appointed the true and lawful
attorney-in-fact of Mortgagor, in its name and stead,
to make all necessary transfers of property thus sold,
and, for that purpose, Lender may execute and deliver,
for and in the name of Mortgagor, all necessary
instruments of assignment and transfer, Mortgagor
hereby ratifying and confirming all that its said
attorney-in-fact shall lawfully do by virtue hereof.
(21) Waiver of Statute of Limitations. Time is of the
essence in all Mortgagor's obligations hereunder; and
to the extent permitted by law, Mortgagor waives all
present or future statutes of limitation with respect
to any debt, demand or obligation secured hereunder in
any action or proceeding for the purpose of enforcing
this Mortgage or any rights or remedies hereunder
including the right to assert any claim barred by a
statute of limitations as an offset or counterclaim in
an action to enforce this Mortgage or the indebtedness
secured hereby.
(22) Inspection and Business Records. Lender at any time
during the term of this Mortgage or any extension or
renewal thereof may, upon prior notice, enter and
inspect the Property at any reasonable time. Mortgagor
agrees that it will keep and maintain at all times at
the business address provided in the Note or at such
other address as Lender may approve, complete and
accurate books of account and records and will provide
annual operating statements for the property within one
hundred twenty (120) days of the end of each calendar
year. Annual operating statements will include current
rent rolls and the status of security deposits for each
tenancy and will be in form and content prepared
according to usual and acceptable accounting principles
and practices. Mortgagor further agrees when requested
by Lender to promptly deliver in writing at Mortgagor's
cost and expense such further additional information as
reasonably required by Lender relating to any financial
statements of the Property or to provide financial
statements and information concerning the beneficiary
of Mortgagor.
(23) Governing Law; Severability. The loan secured by this
Mortgage is made pursuant to, and shall be construed
and governed by, the laws of the United States of
America and the rules and regulations promulgated
thereunder, including the federal laws, rules and
regulations for federal savings and loan associations.
If any paragraph, clause or provisions of this Mortgage
or the Note or any other notes or obligations secured
by this Mortgage is construed or interpreted by a court
of competent jurisdiction to be void, invalid or
unenforceable, such decision shall affect only those
paragraphs, clauses or provisions so construed or
interpreted and shall not affect the remaining
paragraphs, clauses and provisions of this Mortgage or
the Note or other notes or obligations secured by this
Mortgage.
(24) Injury to Property. All causes of action of Mortgagor,
whether accrued before or after the date of this
Mortgage, for damage or injury to the Property or any
part thereof, or in connection with the transaction
financed in whole or in part by the funds loaned
hereunder by Lender, or in connection with or affecting
the Property or any part thereof, including causes of
action arising in tort or contract and causes of action
for fraud or concealment of a material fact, are, at
Lender's option, assigned to Lender, and, subject to
Paragraph 8 hereof, the proceeds thereof shall be paid
to Lender, which, after deducting therefrom all its
expenses, including reasonable attorneys' fees, Lender
may apply such proceeds to the sums secured by this
Mortgage or to any deficiency under this Mortgage or
may release any monies so received by it or any part
thereof, as Lender may elect. Lender may at its option
appear in and prosecute in its own name any action or
proceeding to enforce any such cause of action and may
make any compromise or settlement thereof. Mortgagor
agrees to execute any further assignments and other
instruments as from time to time may be necessary to
effectuate the foregoing provisions as Lender shall
request.
(25) Misrepresentation or Non-Disclosure. Mortgagor or its
beneficiaries have made certain written representations
and disclosures in order to induce Lender to make the
loan evidenced by the Note or notes which this Mortgage
secures. In the event that there has been any material
misrepresentation or failure to disclose any material
information in connection with the loan application and
the supporting loan documentation then, irrespective of
the maturity date specified in the Note or notes, such
misrepresentations or non-disclosure shall permit
Lender to declare all indebtedness secured hereby
immediately due and payable.
(26) Waiver of Homestead. Mortgagor hereby waives all right
of homestead exemption in or relating to such Property.
(27) Notice to Mortgagor. Any notice to the Mortgagor
provided for in this Mortgage or Note or notes secured
hereby shall be deemed given when it is deposited
certified or registered return receipt requested in the
United States mail, postage prepaid, addressed to
Mortgagor at the address of the Mortgagor as it appears
in Lender's records pertaining to the loan at the time
notice is given. If no other address is given, the
address for service provided in the Note shall be
sufficient.
(28) General Provision. (a) This Mortgage applies to,
inures to the benefit of, and binds, all parties hereto
and their successors and assigns; (b) the term "Lender"
shall mean the owner and holder (including a pledgee)
of any note secured hereby, whether or not named as
Lender herein; (c) wherever the context so requires,
the masculine, feminine, and neuter genders each
include the others, the singular number includes the
plural, and vice versa; and (d) captions and paragraph
headings used herein are for convenience only, are not
a part of this Mortgage and shall not be used in
construing it.
(29) Adjustable Mortgage Loan Provisions and Due Date. The
Note which this Mortgage secures is an adjustable
mortgage loan on which the interest rate may be
adjusted from time to time in accordance with a monthly
increase or decrease in an index all as provided in
said Note. From time to time the monthly installment
payments due under said Note may not be sufficient to
pay all interest due in which case unpaid interest will
be added to principal. In no case shall the unpaid
interest added to the principal exceed two hundred
percent (200%) of the original principal indebtedness.
If not sooner paid, all indebtedness due under the
Note, the Mortgage and all loan documents securing said
Note shall be due and payable on December 10, 2004.
(30) Acceleration in Case of Insolvency. Notwithstanding
anything contained in this Mortgage or the Note to the
contrary, if Mortgagor or the owner of the beneficial
interest of Mortgagor shall voluntarily file a petition
under the Federal Bankruptcy Act, as such Act may from
time to time be amended, or under any similar or
successor Federal statute relating to bankruptcy,
insolvency, arrangements or reorganizations, or under
any state bankruptcy or insolvency act, or file an
answer in an involuntary proceeding admitting
insolvency or inability to pay debts, or if said
Mortgagor or owner shall fail to obtain a vacation or
stay of involuntary proceedings brought for the
reorganization, dissolution or liquidation under a
bankruptcy or insolvency act within a reasonably prompt
time after such filing or if said Mortgagor or owner
shall be adjudged a bankrupt, or if a trustee or
receiver shall be appointed for either of them or their
property, or if the Property shall become subject to
the jurisdiction of a Federal bankruptcy court or
similar state court, or if a Mortgagor or owner shall
make an assignment for the benefit of their respective
creditors, or if there is an attachment, execution or
other judicial seizure of any portion of their
respective assets and such seizure is not discharged
within ten (10) days, then Lender may, at Lender's
option, declare all indebtedness due under this
Mortgage and the Note secured hereby to be immediately
due and payable without prior notice, and Lender may
invoke any remedies permitted by Paragraph 18 of this
Mortgage. Any attorneys' fees and other expenses
incurred by Lender in connection with such bankruptcy
or any of the other aforesaid events shall be
additional indebtedness of Mortgagor secured by this
Mortgage and payable on demand.
(31) Waiver of Certain Rights. Mortgagor hereby waives any
and all rights of redemption from sale under any order
of foreclosure of this Mortgage on its own behalf and
on behalf of each and every person, to the full extent
permitted by law. Mortgagor hereby acknowledges and
agrees to the provisions of Section 846.101 and
846.103(2) of the Wisconsin Statutes, as they may apply
to the Property and as may be amended, permitting
Lender in the event of foreclosure to waive the right
to judgment for deficiency and to hold the foreclosure
sale within the time provided in such applicable
Section.
(32) Management of Property. The Property, Phase I Property
and Phase IV Property shall be managed at all times by
an entity ("Manager") acceptable to Lender. Lender
hereby approves of the management of the Property by
Decade Properties, Inc., a Wisconsin corporation. Such
Manager shall operate and manage the Property, Phase I
Property and Phase IV Property under a management
agreement or agreements which shall be satisfactory in
form and substance to and approved in writing by
Lender; and the Manager shall execute such agreement
with Lender as Lender shall require with respect to
said management agreement or agreements and Lender's
rights with respect thereto. Any and all payments due
under any agreement to manage the Property shall be
subordinate to all payments due under the Note and this
Mortgage. All laws, regulations and ordinances
regarding the employment and payment of persons engaged
in the operation and management of the Property, Phase
I Property and Phase IV Property shall be complied
with. Any failure to so comply, or in the event the
Property, Phase I Property and Phase IV Property is
managed by an entity that has not been approved in
writing by Lender as aforesaid, shall constitute an
event of default under this Mortgage entitling Lender
to declare the entire indebtedness evidenced by the
Note immediately due and payable.
(33) Status Certificate. Mortgagor shall within ten days of
a written request from Lender furnish Lender with a
written statement duly acknowledged, setting forth the
sums secured by this Mortgage and any right of setoff,
counterclaim or other defense which exists against such
sums and the obligations of this Instrument.
(34) Nonrecourse Letter. Lender's rights under this
Mortgage are subject to the terms and provisions of
that certain Nonrecourse Agreement entered into by and
between Lender and Mortgagor dated November 22, 1989.
(35) Release. Upon the payment in full to Lender of all
sums due and payable under the Note and this Mortgage,
Lender shall prepare and deliver to Mortgagor a release
sufficient to cause the release of Lender's rights
hereunder. Mortgagor shall pay to Lender a reasonable
sum to cover Lender's costs in connection with the
preparation of such release.
<PAGE>
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage on
the day and year first above written.
DECADE COMPANIES INCOME PROPERTIES
- - A LIMITED PARTNERSHIP, a
Wisconsin limited partnership, by
Decade Companies, a Wisconsin
general partnership, its sole
general partner
By: /s/ Jeffrey Keierleber
Jeffrey Keierleber, a general
partner
<PAGE>
STATE OF WISCONSIN )
) SS:
COUNTY OF MILWAUKEE )
I, Mary Neese Fertl, a Notary Public, in and for and
residing in Milwaukee County, in the State aforesaid, DO HEREBY
CERTIFY that JEFFREY KEIERLEBER, the general partner, of Decade
Companies, a Wisconsin general partnership and sole general
partner of Decade Companies Income Properties - A Limited
Partnership ("DCIP"), personally known to me to be the same
person whose name is subscribed in the foregoing instrument as
such general partner, appeared before me this day in person and
being first duly sworn by me acknowledged that he signed and
delivered the said instrument as his free and voluntary act and
as the free and voluntary act of both Decade Companies and DCIP,
for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial
Seal this 22 day of November, 1989.
/s/ Mary Neese Fertl
Notary Public
MARY NEESE FERTL
My commission is permanent
<PAGE>
EXHIBIT A
Legal Description
Parcel 1:
Lot 2, Certified Survey Map 1872, recorded in Vol. 7 of
Certified Survey Maps, page 312, #1450832, in the City of
Madison, Dane County, Wisconsin
Parcel 2:
Lot 1, Certified Survey May 2982, recorded in Vol. 11 of
Certified Survey Maps, page 399, #1593409, in the City of
Madison, Dane County, Wisconsin
Parcel 3:
That certain Easement Declaration recorded in Vol. 997 of
Records, page 299, #1593405; re-recorded in Vol. 1850 of Records,
page 4, #1662733, as amended by that certain First Amendment to
Easement Declaration dated ________________ 1989, recorded in
Vol. ___ of Records, page ___, #______________________;
Parcel 4:
That certain Recreational Easement Agreement dated ________,
1989, recorded in Vol. ____ of Records, page ____ , #____________
<PAGE>
EXHIBIT B
Legal Description
Parcel 1:
Lot 1, Certified Survey Map, 1872, recorded in Vol. 7 of
Certified Survey Maps, page 312, #1450832, in the City of
Madison, Dane County, Wisconsin
Together with that part of vacated Thompson Blvd. conveyed in
Vol. 1411 of Records, page 15, #1650385
<PAGE>
EXHIBIT C
Legal Description
Parcel 1:
Lots 2 and 3, Certified Survey Map 2982, recorded in Vol. 11 of
Certified Survey Maps, page 399, #1593404, in the City of
Madison, Dane County, Wisconsin
<PAGE>
GUARANTY
GUARANTY. For value received and to induce
______________________________________________ (the "Lender"), to
extend credit to ______________________________________, a
_______________ [corporation, partnership, other entity] (the
"Borrower"), STEELCASE INC., a Michigan corporation (the
"Guarantor"), hereby guarantees[, subject to the limitations
contained in the next paragraph,] payment of the Guaranteed
Obligations when due or, to the extent not prohibited by law, at
the time the Borrower becomes the subject of bankruptcy or other
insolvency proceedings. As used herein, the term "Guaranteed
Obligations" shall mean: (a) the indebtedness of the Dealer to
the Lender arising under that certain [name of primary loan
agreement] dated as of [date of agreement], between the Dealer
and the Lender, and (b) the principal of, all interest on, and
other amounts due under or in respect of that certain [promissory
note dated as of _____________] (the "Note") in the original
principal amount of $____________ issued by the Dealer payable to
the Lender, including without limitation the amount of any
payments made to the Lender or another by or on behalf of the
Dealer that are recovered from the Lender by a trustee, receiver,
creditor or other party pursuant to applicable federal or state
law. The Guaranteed Obligations shall also include any of the
Note, provided that such renewal, refinancing, extension or
modification shall not increase the principal amount of, or
interest rate payable on, the Note. This Guaranty shall be
enforceable as to all Guaranteed Obligations, despite any
discharge of the Borrower in bankruptcy, or any adjustment of the
debts, liabilities and obligations of Borrower in bankruptcy,
reorganization or insolvency proceedings or pursuant to any other
compromise with creditors. This is a guaranty of payment.
[LIMITATION. The liability of the Guarantor under this
Guaranty is limited to $__________________________, plus fees and
expenses payable by the Guarantor under this Guaranty.]
WAIVER. To the extent not prohibited by law, the
Guarantor expressly waives: (i) notice of the acceptance of this
Guaranty, the creation of any Guaranteed Obligation, default
under any Guaranteed Obligation, or proceedings to collect from
the Borrower or any other party; provided, however, that the
Guarantor does not waive notice, and the Lender shall provide
prior written notice to the Guarantor, of any acceleration of the
maturity of the Guaranteed Obligations and the commencement of
any action by the Lender to enforce its remedies against the
Borrower or any collateral for the Guaranteed Obligations; (ii)
all diligence of collection, (iii) presentment, demand, notice
and protest in respect of any Guaranteed Obligation, and (iv) any
right to disclosures from the Lender regarding the financial
condition of the Borrower or regarding the collectibility or
enforceability of any Guaranteed Obligation.
SUBROGATION. No claim for contribution or subrogation
that the Guarantor may have against a co-guarantor or the
Borrower arising out of any payment made by the Guarantor in
respect of the Guaranteed Obligations shall be enforced, nor any
payment in respect of such a contribution or subrogation claim
accepted by the Guarantor, until the Guaranteed Obligations are
paid in full and all payments to the Lender in respect of the
Guaranteed Obligations are not subject to any right of recovery.
GOVERNING LAW. This Guaranty shall be governed by, and
construed and interpreted in accordance with, the laws of the
State of Michigan applicable to agreements made and wholly
performed within such state.
NOTICES. All communications or notices required or
permitted by this Guaranty shall be in writing (including without
limitation facsimile transmission promptly confirmed by mail or
courier) and shall be deemed to have been given upon delivery if
hand delivered, or upon deposit in the United States mail,
postage prepaid, or upon deposit with a nationally recognized
overnight commercial carrier, airbill prepaid, and addressed as
follows, unless and until any of such parties notifies the others
in accordance with this paragraph of a change of address:
If to the Guarantor: Steelcase Inc.
901 - 44th Street SE
Grand Rapids, Michigan 49508
Attention: ________________________
If to the Lender: ___________________________________
___________________________________
___________________________________
Attention: ________________________
EXPENSES AND ATTORNEYS' FEES. The Guarantor shall pay
all fees and expenses incurred by the Lender, including the
reasonable fees of counsel, in connection with the protection and
enforcement of the Lender's rights under this Guaranty.
REVOCATION. This is a continuing guaranty and shall
remain in full force and effect until the Lender receives written
notice of its revocation signed by the Guarantor. Upon
revocation, this Guaranty shall continue in full force and effect
as to all Guaranteed Obligations contracted for or incurred
before revocation, and as to them the Lender shall have the
rights provided by this Guaranty as if no revocation had
occurred. Any renewal or extension of any Guaranteed Obligation,
whether made before or after revocation, shall constitute an
Guaranteed Obligation contracted for or incurred before
revocation, provided that such renewal or extension does not
increase the amount of the Guaranteed Obligations. Obligations
contracted or incurred before revocation shall also include
credit extended after revocation pursuant to commitments made
before revocation.
PERSONS BOUND. This Guaranty benefits the Lender, its
successors and assigns, and binds the Guarantor, its successors
and assigns.
Dated as of _______________________.
STEELCASE INC.
By: _______________________________
Its:_______________________________
EXHIBIT 10.6
MORTGAGE MODIFICATION AGREEMENT
THIS MORTGAGE MODIFICATION AGREEMENT is made and entered
into as of the 1st day of December, 1993, by and between PELICAN
SOUND APARTMENTS, INC., a Florida corporation ("Mortgagor"),
joined by FENGAR INVESTMENTS CORPORATION, a Canadian corporation
("Guarantor"), and RIVER BANK AMERICA, a New York banking
corporation formerly known as East River Savings Bank
("Mortgagee").
W I T N E S S E T H:
WHEREAS, Mortgagee is the owner and holder of (i) that
certain Building Loan Mortgage executed by Pelican Sound Limited
Partnership, a Florida limited partnership ("Original Borrower")
in favor of Mortgagee (under its former name of "East River
Savings Bank") dated as of the 30th day of September, 1987,
recorded October 2, 1987, in Official Records Book 6593, Page
1965 of the Public Records of Pinellas County, Florida ("Mortgage
1"), encumbering the real property and improvements more
particularly described in Mortgage 1 (the "Mortgage Property"),
(ii) that certain Mortgage by Original Borrower in favor of
Mortgagee, dated December 27, 1989 recorded January 3, 1990 in
Official Records Book 7167, Page 1916 of the Public Records of
Pinellas County, Florida ("Mortgage 2"), encumbering the Mortgage
Property, and (iii) that certain Mortgage Consolidation and
Modification Agreement by and between Original Borrower and
Mortgagee, dated as of December 27, 1989, recorded January 3,
1990 in Official Records Book 7167, Page 1961, in the Public
Records of Pinellas County, Florida, pursuant to which Mortgage 1
and Mortgage 2 were amended and restated in their entirety and
consolidated as a single mortgage lien securing a consolidated
indebtedness as of the date thereof in the principal amount of
$15,750,000.00 (all such instruments, as consolidated, modified
and restated being hereinafter referred to as the "Consolidated
Mortgage"); and
This instrument prepared by
and should be returned to:
Richard H. Sollner, Esq.
Trenam, Simmons, Kemker,
Scharf, Barkin, Frye &
O'Neill, P.A.
2700 Barnett Plaza
Post Office Box 1102
Tampa, Florida 33601
<PAGE>
WHEREAS, the Consolidated Mortgage secures (i) that certain
Building Loan Mortgage Note dated September 30, 1987, by Original
Borrower to the order of Mortgagee evidencing a loan in the
original principal amount of $15,150,000.00 ("Note 1"), (ii) that
certain Mortgage Note dated December 27, 1989, executed by
Original Borrower to the order of the Lender, evidencing further
indebtedness of Original Borrower to Mortgagee in the original
principal amount of $600,000.00 ("Note 2"), and (iii) that
certain Note Consolidation and Modification Agreement by and
between Original Borrower and Mortgagee, dated as of December 27,
1989 (the "Note Modification Agreement"), consolidating Note 1
and Note 2 as a single indebtedness in the principal amount as of
such date of $15,750,000.00, and amending and restating such
consolidated indebtedness theretofore evidenced by Note 1 and
Note 2 in its entirety (all such instruments, as consolidated,
modified and restated being hereinafter referred to as the
"Original Note"); and
WHEREAS, Original Note and the Consolidated Mortgage were
assumed by Mortgagor by virtue of that certain Release and
Assumption Agreement dated December 27, 1989, recorded in
Official Records Book 7167, Page 2002, Public Records of Pinellas
County, Florida; and
WHEREAS, the Original Note has been renewed by a certain
Renewal Mortgage Promissory Note in the original principal amount
of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) dated as of
even date herewith executed by Mortgagor in favor of Mortgagee
(the "Renewal Note"); and
WHEREAS, Mortgagor and Mortgagee desire to execute and
record this Agreement in order to evidence and give record notice
that the Renewal Note is secured by the lien of the Consolidated
Mortgage, and Guarantor has executed and delivered this Agreement
to evidence its joinder herein;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. The Renewal Note shall be secured by the lien of the
Consolidated Mortgage, as modified hereby. Whenever the term
"Note" is used in the Consolidated Mortgage, as modified hereby,
it shall be deemed to refer to the Renewal Note.
2. The Consolidated Mortgage shall also secure Mortgagor's
obligations under that certain Term Loan Agreement of even date
herewith executed by, among others, Mortgagor, Guarantor and
Mortgagee (the "Loan Agreement").
3. Unless the Renewal Note matures prior to December 1, 2003
in accordance with the terms of the Renewal Note, the maturity
date of the Consolidated Mortgage, as modified hereby, December
1, 2003.
4. Mortgagor warrants and represents that the lien of the
Consolidated Mortgage is a valid first priority lien on the
Mortgage Property and that the security interests granted by any
document securing the Original Note or the Renewal Note and/or
executed in connection with, or relating to, the indebtedness
evidenced thereby (individually, a "Loan Document," and
collectively, the "Loan Documents") is, to the extent the same
secures the Original Note or the Renewal Note, a valid and
perfected security interest in the collateral described therein
with a priority as stated therein, except as may be expressly
modified hereby.
5. Mortgagor warrants and represents that:
(a) such Loan Documents and other agreements, documents
or instruments, if any, are in full force and effect as of the
date hereof, and are enforceable in accordance with their
respective terms;
(b) Mortgagor has no defense or right of offset with
respect to any indebtedness to Mortgagee;
(c) except for any defaults of which Mortgagee is aware
and has agreed to forbear in enforcing, Mortgagor is not in
default of any of the covenants and conditions of the Loan
Documents, nor aware of any default with respect thereto or of
any event which, with notice and/or passage of time, would become
an event of default under any of the foregoing; and
(d) the organizational documents of Mortgagor which
were provided to Mortgagee in connection with the execution of
the Renewal Note remain true and correct and have not been
modified or amended and Mortgagor remains in good standing and
authorized to transact business in the State of Florida.
6. It is the intent of the parties that this instrument
shall not constitute a novation, and shall in no way adversely
affect the lien or security interest priority of the Loan
Documents.
7. Except as herein provided, the Consolidated Mortgage and
the other Loan Documents shall remain unaffected, unchanged,
unmodified, and unimpaired, and the priority of the lien of the
Consolidated Mortgage on the Mortgage Property shall not be
changed or in any way altered or affected hereby.
8. Guarantor hereby consents to the renewal and
modifications made herein and agrees and acknowledges that the
payment of the indebtedness of Mortgagor to Mortgagee evidenced
by the Renewal Note and the performance by Mortgagor of its
obligations under the Consolidated Mortgage and the Loan
Agreement are guaranteed by Guarantor pursuant to the terms of
that certain Guaranty of Payment dated December 27, 1989 executed
by Guarantor in favor of Mortgagee.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as of the day and year first above written.
Signed, sealed and delivered
in the presence of: PELICAN SOUND APARTMENTS,
INC.,
a Florida corporation
/s/____________________________ By:/s/________________________
Name:_______________________ Name:_________________________
[Please Print or Type] Title:________________________
/s/_________________________
Name:_______________________ (CORPORATE SEAL)
[Please Print or Type]
"MORTGAGOR"
FENGAR INVESTMENTS CORPORATION,
a Florida corporation
/s/_________________________ By:/s/________________________
Name:_______________________ Name:_________________________
[Please Print or Type] Title:________________________
/s/_________________________
Name:_______________________ (CORPORATE SEAL)
[Please Print or Type]
<PAGE>
Signed, sealed and delivered RIVER BANK AMERICA, a New
in the presence of: York banking corporation
____________________________ By:/s/________________________
Name:_______________________ Name:_________________________
[Please Print or Type] Title:________________________
/s/_________________________ Address: 145 Huguenot Street
Name:_______________________ New Rochelle, NY 20801
[Please Print or Type]
"MORTGAGEE"
<PAGE>
STATE OF ___________________)
COUNTY OF __________________)
THE FOREGOING INSTRUMENT has been acknowledged before me
this _____ day of December, 1993, by /s/_______________________,
as _________________________, of PELICAN SOUND APARTMENTS, INC.,
a Florida corporation, on behalf of the corporation. He/she is
either [please check as applicable] personally known to me or has
produced his/her driver's license as identification.
__________________________________
Name:_____________________________
[Please Print or Type]
NOTARY PUBLIC
(AFFIX NOTARIAL SEAL)
My Commission Expires:
STATE OF ___________________)
COUNTY OF __________________)
THE FOREGOING INSTRUMENT has been acknowledged before me
this _____ day of December, 1993, by __________________________,
as _________________________, of FENGAR INVESTMENTS CORPORATION,
a Canadian corporation, on behalf of the corporation. He/she is
either [please check as applicable] personally known to me or has
produced his/her driver's license as identification.
/s/_______________________________
Name:_____________________________
[Please Print or Type]
NOTARY PUBLIC
(AFFIX NOTARIAL SEAL)
My Commission Expires:
<PAGE>
STATE OF NEW YORK __________)
COUNTY OF __________________)
THE FOREGOING INSTRUMENT has been acknowledged before me
this _____ day of December, 1993, by Edward L. Shugrue, III, as
Vice President, of RIVER BANK AMERICA, a New York banking
corporation, on behalf of the corporation. He is personally
known to me.
/s/_______________________________
Name:_____________________________
[Please Print or Type]
NOTARY PUBLIC
(AFFIX NOTARIAL SEAL)
My Commission Expires:
EXHIBIT 10.7
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT is made and entered into as of the
1st day of December, 1993, by and among RIVER BANK AMERICA, a New
York banking corporation formerly known as East River Savings
Bank (hereinafter called "Lender"); PELICAN SOUND APARTMENTS,
INC., a Florida corporation (hereinafter called "Borrower"); and
FENGAR INVESTMENTS CORPORATION, a Canadian corporation
(hereinafter called "Guarantor").
W I T N E S E T H:
WHEREAS, Lender heretofore made a mortgage loan evidenced by
certain promissory notes (the "Original Loan") to Pelican Sound
Limited Partnership, a Florida limited partnership ("Original
Borrower") in the aggregate principal amount of FIFTEEN MILLION
SEVEN HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,750,000.00)
to provide mortgage financing of a 379 unit residential project
known as the "Pelican Sound Apartments" (the "Project"); and
WHEREAS, the Original Loan was further evidenced and/or
secured by the following instruments and documents (collectively,
the "Original Loan Documents"), each of which was executed by
Original Borrower and delivered to Lender:
(a) The Mortgage (as hereinafter defined);
(b) Assignment of Landlord's Interest in Rents
and Leases by Original Borrower (as hereinafter defined) in favor
of Lender, dated September 30, 1987 recorded October 2, 1987, in
Official Records Book 6593, Page 2016 of the Public Records of
Pinellas County, Florida ("Assignment of Leases 1");
(c) UCC1 Financing Statement by Original Borrower
as Debtor, in favor of Lender, as Secured Party, recorded
October 2, 1987, in Official Records Book 6593, Page 2032 of the
Public Records of Pinellas County, Florida;
(d) Assignment of Landlord's Interest in Rents
and Leases by Original Borrower in favor of Lender, dated
December 27, 1989 recorded January 3, 1990 in Official Records
Book 7167, Page 1945 of the Public Records of Pinellas County,
Florida ("Assignment of Leases 2");
(e) UCC1 Financing Statement by Original Borrower
as Debtor, in favor of Lender, as Secured Party, recorded
January 3, 1990, in Official Records Book 7167, Page 1994 of the
Public Records of Pinellas County, Florida.
WHEREAS, effective as of December 27, 1989, the Project was
conveyed to Pelican by Original Borrower, by special warranty
deed recorded in Official Records Book 7167, Page 1998, Public
Records of Pinellas County, Florida, and Pelican assumed all
obligations of Original Borrower with respect to the Original
Loan by virtue of a certain Release and Assumption Agreement
dated as of December 27, 1989, executed by and among Borrower,
Lender and Partnership (the "Assumption Agreement"), which
Assumption Agreement is recorded in Official Records Book 7167,
Page 2002, Public Records of Pinellas County, Florida; and
WHEREAS, following the conveyance of the Project to Pelican,
the Original Loan became guaranteed by Guarantor by virtue of a
certain Guaranty of Payment dated as of December 27, 1989 (the
"Guaranty");
WHEREAS, the outstanding principal amount of the Original
Loan has been reduced and Borrower has of even date herewith
executed and delivered to Lender that certain Renewal Mortgage
Promissory Note (the "Note") in the principal amount of TEN
MILLION AND NO/ 100 DOLLARS ($10,000,000.00) evidencing a renewed
loan (the "Renewed Loan") from Lender to Borrower; and
WHEREAS, Borrower, Guarantor and Lender have agreed to
certain terms and conditions with respect to the Renewed Loan as
more particularly set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the premises and
of the mutual covenants and agreements contained herein, the
mutual receipt and sufficiency of which are hereby acknowledged,
IT IS HEREBY AGREED, by and among the parties hereto, as
follows:
1. Recitals. The foregoing recitals are true and correct,
and are by this reference made a part of this Agreement.
2. Defined Terms. As used in this Agreement, the
following terms shall have the meanings hereinafter ascribed to
them in this subparagraph:
2.1 Budget. The budget of income and expenses for the
Project which has, from time to time, been provided Lender as
provided in Paragraph 6, below.
2.2 Extension Term. In the event that Borrower elects
the Extension Term as provided in the Note, the period commencing
on the fifth (5th) anniversary of the date of this Agreement and
ending on the Maturity Date.
2.3 Initial Term. The period commencing on the date
of this Agreement and ending on the fifth (5th) anniversary of
the date of this Agreement.
2.4 Letter of Credit. The letter of credit to be
provided to Lender as additional security pursuant to the
provisions of Paragraph 3, below.
2.5 Loan Documents. The Original Loan Documents, the
Note, the Mortgage, this Agreement and all other documents
heretofore or hereafter executed in connection with the Original
Loan and/or the Renewed Loan.
2.6 Loan Term. The period from the date of this
Agreement through and including the Maturity Date.
2.7 Maturity Date. The earlier of (i) the Stated
Maturity Date or (ii) the date upon which the indebtedness
evidenced by the Note becomes due and payable by reason of a
default, beyond any applicable grace or notice periods, hereunder
or under any of the other Loan Documents.
2.8 Monthly Tax Escrow Payment. The amount to be
placed in the Tax Account monthly for the payment of real and
personal property taxes on the Project, which shall be in the
amount of one-twelfth of the anticipated real and personal
property taxes to be assessed against the Project for the then-
applicable tax year, which Monthly Tax Escrow Payment for the
first twelve (12) month period commencing December 1, 1993, shall
be in the amount of $27,212.40.
2.9 Mortgage. That certain Building Loan Mortgage
dated as of the 30th day of September, 1987, executed by Original
Borrower in favor of the Lender (under its former name of "East
River Savings Bank") securing Note 1 and encumbering the Premises
("Mortgage 1"), Mortgage by Original Borrower in favor of the
Lender, dated December 27, 1989 recorded January 3, 1990 in
Official Records Book 7167, Page 1916 of the Public Records of
Pinellas County, Florida ("Mortgage 2"), given as security for
Note 2, as consolidate, amended and restated by Mortgage
Consolidation and Modification Agreement by and between the
Partnership and Lender, dated as of December 27, 1989, recorded
January 3, 1990 in Official Records Book 7167, Page 1961, in the
Public Records of Pinellas County, Florida, pursuant to which
Mortgage 1 and Mortgage 2 were amended and restated in their
entirety and consolidated as a single mortgage lien securing a
consolidated indebtedness as of the date thereof in the principal
amount of $15,750,000.00, as further amended by that certain
Mortgage Modification Agreement executed by the Borrower and the
Lender of even date herewith.
2.10 Project Manager. Decade Properties, Inc. or a
successor manager of the Project designated and approved as
provided in this Agreement.
2.11 Stated Maturity Date. The fifth (5th) anniversary
of the date of this Agreement unless the Borrower shall qualify
for and elect the Extension Term as provided in this Note, in
which case such term shall mean the tenth (10th) anniversary of
the date of this Agreement.
2.12 Tax Account. A segregated, interest bearing, bank
account maintained by Lender at River Bank America, in which
Lender shall deposit and hold the Monthly Tax Escrow Payments as
provided in this Agreement.
3. Letter of Credit. Borrower has of even date herewith
delivered to Lender an unconditional and irrevocable letter of
credit for the benefit of Lender in the face amount of
$58,334.00, expiring on January 1, 1995. The Letter of Credit is
hereby pledged to Lender as additional security for the Renewed
Loan. Lender shall hold the Letter of Credit until the earlier
to occur of (i) the occurrence of a default under the Renewed
Loan or (ii) December 1, 1994. If the event which first occurs
is the occurrence of a default under the Renewed Loan, Lender
shall be entitled to draw down the amount of the Letter of Credit
and apply the same to the reduction of the outstanding principal
and interest on the Renewed Loan in such order as Lender may
elect. If the event which first occurs is December 1, 1994,
Lender shall return the Letter of Credit to Borrower.
4. Tax Account. Borrower shall pay the Monthly Tax Escrow
Payment to Lender on the first day of each month during the Loan
Term (except that the initial Monthly Tax Escrow Payment shall be
made on or before December 15, 1993), together with Borrower's
payment of principal and/or interest under the Note. Lender
shall deposit each Monthly Tax Escrow Payment into the Tax
Account as soon as reasonably convenient after receipt thereof.
All funds on deposit in the Tax Account shall be held and
disbursed by Lender in accordance with the provisions of Article
5(b) of the Mortgage, provided that the Tax Account shall be an
interest bearing account, notwithstanding any provision to the
contrary contained in said Article 5(b).
5. Management of Project. The Project shall be managed by
the Project Manager in accordance with this Agreement and the
provisions of the property management agreement between the
Project Manager and Borrower (the "Management Agreement"), a true
and correct copy of which has been delivered to Lender. Borrower
shall not modify, amend or terminate the Management Agreement
without the prior written consent of Lender. In the event that
Decade Properties, Inc. is terminated as the Project Manager with
the consent of Lender, Borrower shall submit to Lender the name,
resume and such other materials concerning the qualifications and
experience of the property management entity which Borrower
proposes be designated as the new Project Manager as Lender may
reasonably request, and the designation of a new property
management entity to serve as Project Manager shall not be made
without the prior written approval of the new Project Manager by
Lender.
6. Budgets and Operating Reports.
6.1 Annually, on or before January 1, 1994 for
calendar year 1994 and on December 1 of each year thereafter for
subsequent calendar years during the Loan Term, Borrower shall
prepare and submit to Lender an operating budget for the Project
substantially in the form attached hereto as Exhibit "A." Such
Budget shall be for informational purposes, unless and until an
Event of Default shall occur. Following the occurrence of an
Event of Default, any budget submitted thereafter shall be
subject to Lender's approval and Borrower shall submit supporting
documentation with such budget. Any required approval by Lender
shall be granted or withheld by Lender in its sole, but
reasonable, discretion. Following the occurrence of an Event of
Default, Borrower shall not exceed any line item of the approved
Budget by more than ten percent (10%) without the prior written
approval of Lender.
6.2 Borrower shall provide to Lender monthly, a then
current rent roll for the Project in Borrower's standard form and
an operating statement for the Project for such month
substantially in the form attached hereto as Exhibit "B."
Further, Borrower shall deliver to Lender copies of any financial
statements (including Forms 10Q and 10K, with attachments) which
Borrower is required to file with the Securities and Exchange
Commission or other applicable governmental authority within ten
(10) days after the same is filed with such governmental
authority. The provisions of this Section 6.2 shall supersede
and replace, in their entirety, the provisions of Section 15 of
the Mortgage.
7. Operation of Project. Borrower shall, or shall cause
the Project Manager to, protect, preserve and maintain the
Security, pay and perform all obligations of the landlord under
tenant leases, timely pay all valid statements or invoices for
services rendered by third parties to or for the benefit of the
Security, maintain in full force and effect all insurance
required by the Loan Documents and otherwise comply with the
provisions of the Loan Documents applicable to the management and
operation of the Project which are not inconsistent with the
terms hereof.
8. Sale or Transfer of Interests in the Project and/or
Pelican. During the Loan Term, Borrower shall not voluntarily or
by operation of law, sell, convey, transfer or permit to be sold,
conveyed or transferred, any interest in the Project or any part
thereof without the prior written consent of Lender having been
first obtained. In the event that the Project is transferred by
Borrower to Decade Companies Income Properties, a Limited
Partnership ("Decade"), as contemplated by Borrower, Lender
agrees not to unreasonably withhold its consent to a one-time
transfer of the Project by Decade, provided the proposed
transferee (i) has a net worth of not less than $5,000,000, (ii)
has demonstrated multi-family residential management experience
and has not less than 2,000 multi-family residential units under
management and (iii) is not, and is not related to or affiliated
with, any entity which is or has been a borrower from Lender
which has been or then is in default to Lender with respect to
any such borrowing(s). In connection with any such approved
transfer, Lender may charge a transfer or assumption fee not to
exceed one percent (1%) of the then outstanding balance of the
Loan. Further, Borrower shall not sell or transfer any of its
stock to anyone who is not a shareholder as of the date of this
Agreement without the prior written consent of Lender having been
first obtained. Any prohibited transaction under this
subparagraph shall be null and void.
9. Event of Default. The occurrence of any of the
following events shall constitute an "Event of Default" for
purposes of this Agreement:
(a) if any payment required of Borrower pursuant
to this Agreement is not received within five (5) days after the
same becomes due and payable; or
(b) if Borrower (a) shall willfully fail, in any
material respect, to perform (or cause to be performed) any of
its covenants and agreements under this Agreement (other than the
making of a required payment), or (b) shall fail through
inadvertence, in any material respect, to perform (or cause to be
performed) any of its covenants and agreements under this
Agreement (other than the making of a required payment), and such
failure remains uncured upon the expiration of five (5) days
following notice of same from Lender to Borrower; or
(c) if an event shall occur which would entitle
Lender, pursuant to Article 18 of the Mortgage, to declare the
principal and interest under the Note to be due and payable; or
(d) if any representation or warranty of Borrower
contained herein or in the Loan Documents shall be determined to
have been materially false, inaccurate or misleading when made;
or
Upon the occurrence of an Event of Default, Lender shall be
entitled to pursue all rights and remedies provided in this
Agreement, the Note, the Mortgage and/or the other Loan
Documents, including, without limitation, the right to declare
the entire outstanding principal amount of the Note, together
with accrued and unpaid interest, to be immediately due and
payable and the right to foreclose the lien of the Mortgage.
10. Representations and Warranties. As a material
inducement to Lender's agreements and stipulations herein,
Borrower, as to all subparagraphs hereof, and Guarantor, as to
Subparagraphs 12.1, 12.2(d), 12.3 and 12.5, warrant and represent
to Lender as follows:
10.1 No Claims, Defenses, Etc. Neither Borrower nor
Guarantor has any claim, defense or right of setoff whatsoever
with respect to any of the obligations evidenced by or arising
under the Note or the other Loan Documents, or otherwise relating
to the Renewed Loan.
10.2 Organization, Corporation, Power, Etc.
(a) Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Florida;
(b) Borrower (i) has all requisite right, power
and authority to own property and to carry on its businesses in
the State of Florida, and (ii) is in compliance with all laws,
regulations, ordinances and rules of public authorities which are
applicable thereto;
(c) Borrower has all requisite right, power and
authority under its organizational documents and applicable law
to execute and deliver this Agreement, the Note and the other
documents executed in connection with the Renewed Loan and to
consummate the transactions contemplated hereby;
(d) Guarantor is a corporation duly organized,
validly existing and in good standing under the laws of Canada
and has all requisite right, power and authority under its
organizational documents and applicable law to execute and
deliver this Agreement to consummate the transactions
contemplated hereby and thereby.
10.3 Validity of Agreement. The execution and delivery
of this Agreement and the performance by Borrower and Guarantor
of their respective covenants and agreements hereunder:
(a) have been duly authorized by all requisite
action on the part of Borrower and Guarantor, including, without
limitation, the obtaining of any required shareholder or partner
approvals;
(b) do not, to the best of Borrower's or
Guarantor's knowledge and belief, require the approval of any
governmental authority;
(c) will not violate any provision of law, any
order or regulation of any court or other governmental authority,
or any undertaking, indenture, contract, agreement or other
instrument to which Borrower or Guarantor is a party or by which
Borrower or Guarantor, or any of their properties or assets, is
bound; and
(d) will not conflict with, result in a breach of
or constitute (with due notice and/or lapse of time) a default
under or breach of any such undertaking, indenture, contract,
agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature
whatsoever upon any such properties or assets.
10.4 Title. Borrower owns (i) fee simple title to the
Real Property, subject only to real property taxes and to
easements, encumbrances and other matters which are evidenced by
instruments recorded in the Public Records of Pinellas County,
Florida prior to the date of this Agreement. Borrower covenants
and agrees that, from and after the date of this Agreement, it
will not take, permit or suffer any action that would render the
representations and warranties contained in this subparagraph
untrue or inaccurate in any respect.
10.5 Financial Statements. To the best of Borrower's
knowledge, all financial and/or operating statements that have
been furnished to Lender with respect to the Project, Borrower
and\or any proposed purchaser of the Project are true, complete
and accurate in all material respects.
10.6 Compliance with Laws, Etc. The Project is in
compliance with all laws, codes, ordinances, rules and
regulations applicable thereto, and with all orders and
requirements imposed by any governmental authority having or
claiming jurisdiction thereof.
10.7 Accounts Payable. Except for certain unpaid
operating expenses for the current month, Borrower has paid or
caused to be paid all valid statements or invoices which (i)
relate to services rendered by third parties to or for the
benefit of the Project prior to the date of this Agreement, and
(ii) were due and payable on or before the date of this
Agreement.
11. Notice. Any notice, request, demand, consent, approval
or other communication made pursuant hereto or in connection
herewith shall be in writing and shall be delivered (except as
otherwise provided in this Agreement) either by personal delivery
or by certified or registered mail, return receipt requested,
postage prepaid, addressed to the party for whom it is intended
at the following addresses:
To Borrower
or Guarantor: Pelican Sound Apartments, Inc.
1231 Younge Street
Toronto, Ontario, Canada M4T 2T8
Attn: Sheldon Fenton
To Lender: River Bank America
145 Huguenot Street
New Rochelle, New York 10801
Attn: Edward L. Shugrue, III
with a copy to: Richard H. Sollner, Esq.
Trenam, Simmons, Kemker, Scharf,
Barkin, Frye & O'Neill, P.A.
Barnett Plaza, Suite 2700
Tampa, Florida 33602
provided, however, that any party may change its address for
purposes of receipt of any such communication by giving at least
ten (10) days' written notice of such change to the other parties
in the manner above prescribed. Any communication effected by
personal delivery (including without limitation personal delivery
by a nationally recognized overnight delivery service or by
courier) shall be effective upon delivery. Any communication
mailed in accordance with the above provisions shall be deemed
received and effective on the third business day after the date
on which mailed.
12. Governing Law. This Agreement shall be governed by and
be construed in accordance with the laws of the State of Florida.
13. Severability. In case any one or more of the
provisions of this Agreement is determined to be invalid or
unenforceable in any respect, the validity and enforceability of
the remaining provisions shall be in no way affected, prejudiced
or impaired thereby.
14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original but
all of which together shall constitute one and the same
agreement.
15. No Partnership or Joint Venture. Neither anything
contained in this Agreement nor any acts of the parties hereto
shall be construed to create a partnership or joint venture of
any kind between Lender and any one or more of Borrower or
Guarantor.
16. Headings. The paragraph and subparagraph headings of
this Agreement are for convenience and reference only and shall
not be considered a part hereof, nor shall they be deemed to
limit or otherwise affect any of the terms or provisions hereof.
17. Time of Essence. Time is of the essence of this
Agreement and all of the terms and conditions hereof.
18. Jury Trial is Waived. No party to this Agreement shall
seek a jury trial in any lawsuit, proceeding, counterclaim or any
other litigation based upon or arising out of this Agreement, the
Renewed Loan, any document or instrument related hereto or
thereto, any of the security for the Renewed Loan or any dealings
or relationships between or among the parties, or any of them.
If the subject matter of any such litigation is one in which the
waiver of a jury trial is prohibited, by constitutional or
statutory provision, no party hereto will present as a defense or
counterclaim in such litigation any claim which would reduce or
offset any amount or right claimed under the provisions of this
Agreement or the Loan Documents. No party will seek to
consolidate any such action, in which a jury has been waived,
with any other action in which a jury trial cannot or has not
been waived. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY
DISCUSSED BY THE PARTIES HERETO. NO PARTY HAS IN ANY WAY AGREED
WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF
THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
19. Attorneys' Fees. In the event of any litigation
arising out of any breach or alleged breach of this Agreement,
the prevailing party shall be entitled to recover all costs,
expenses and reasonable attorneys' fees incurred thereby in
connection with such litigation, including without limitation any
trial or appeal.
20. Indemnification by Borrower. Borrower covenants and
agrees that, in the event of the occurrence of any Event of
Default, it shall indemnify Lender and hold Lender harmless from
and against any and all loss, cost, expense, liability or claim
arising therefrom or in connection therewith.
21. Entire Agreement. This Agreement constitutes the
entire agreement of the parties with respect to the subject
matter hereof, and may not be modified except by written
agreement of the party sought to be charged therewith. The terms
and conditions of this Agreement shall be binding upon, be
enforceable by and inure to the benefit of the parties hereto and
their respective successors and assigns. The parties acknowledge
and agree that this Agreement relates solely to the Renewed Loan,
and does not affect any other transactions between or among the
parties hereto.
22. Exhibits. All of the exhibits and schedules attached
hereto are incorporated herein by reference and form a part of
this Agreement.
23. Joinder by Guarantor. Guarantor joins in the execution
of this Agreement for the purposes of (i) making the
representations set forth in Paragraph 12, (ii) consenting to the
modification of the Original Loan in the manner set forth in this
Agreement, the Note, the Mortgage and the other Loan Documents
and (iii) confirming that that certain Guaranty of Payment dated
December 27, 1989, executed by Guarantor in favor of Lender
remains in full force and effect with respect to the Renewed
Loan.
IN WITNESS WHEREOF, Borrower, Guarantor and Lender have
caused this Agreement to be duly executed and delivered on the
date first above written.
BORROWER:
Signed, sealed and delivered PELICAN SOUND APARTMENTS, INC.,
in our presence as witnesses: a Florida corporation
__________________________ By: /s/ Renee Gareau
Name: Rene Gareau
Title: Vice President
__________________________
As to Pelican
GUARANTOR:
FENGAR INVESTMENTS CORPORATION,
a Canadian corporation
_________________________ By: /s/ Rene Gareau
Name: Rene Gareau
Title: Vice President
_________________________
As to Guarantor
LENDER:
RIVER BANK AMERICA, a New York
banking corporation
__________________________ By: _________________________
Name: _______________________
Title: _______________________
__________________________
As to Lender
EXHIBIT 10.8
LOAN AGREEMENT
THIS LOAN AGREEMENT is made entered into this 16th day
of May, 1996, by and between REPUBLIC BANK, a Florida banking
corporation (the "Lender") and DECADE COMPANIES INCOME
PROPERTIES - A LIMITED PARTNERSHIP, a Wisconsin limited
partnership authorized to do business in the State of Florida
(the "Borrower"), and is made in reference to the following
facts:
(A) On or about the date hereof, the Lender has made a
secured 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").
(B) In connection with the Loan, the Borrower has
executed and delivered to Lender, among other things, a note (the
"Note"). The Borrower has also executed and delivered to Lender
a Mortgage, Assignment of Rents, Leases, Contracts, Accounts
Receivable, Accounts and Deposit Accounts, Security Agreement,
Environmental Compliance and Indemnity Agreement, UCC-1 Financing
Statements and numerous other documents securing the Loan,
(collectively the "Instruments of Security"). The Note and
Instruments of Security collectively comprise the "Loan
Documents".
(C) The Lender has required the execution and
delivery of this Agreement by the Borrower as a condition to
making the Loan to Borrower, and Borrower is agreeable to such.
NOW THEREFORE, for and in consideration of the mutual
covenants and conditions contained herein and other valuable
consideration, the receipt and adequacy of which is hereby
acknowledged, the parties covenant and agree as follows:
ARTICLE I - INTRODUCTORY PROVISIONS
1.1 Recitals. The statements contained in the
recitals of fact set forth above (the "Recitals") are true and
correct, and the Recitals by this reference are made a part of
this Agreement.
1.2 Exhibits. All exhibits attached to this Agreement
are by this reference made a part hereof.
1.3 Abbreviations and Definitions. The following
abbreviations and definitions will be used for purposes of this
Agreement:
(a) The abbreviations for the parties set forth
in the Preamble will be used for purposes of this Agreement.
(b) The abbreviations and definitions set forth
in the Recitals will be used for purposes of this Agreement.
ARTICLE II - LOAN
2.1 Loan. On or about the date hereof, Borrower has
executed the Note in favor of Lender in the original principal
amount of Loan. The principal that is disbursed by Lender to
Borrower shall bear interest and be repaid in the manner set
forth in the Note.
2.2 Purpose. The purpose of the Loan evidenced by the
Note is to provide funds for the refinancing of existing
indebtedness encumbering the real property that will serve as
partial security for the Loan.
ARTICLE III - FINANCIAL AND OPERATIONAL DISCLOSURES
At all times during the term of the Loan, the Borrower
shall provide to Lender the following:
(a) No later than forty-five (45) days after the end
of Borrower's fiscal quarters, the Borrower shall provide to
Lender its unaudited management-prepared quarterly financial
statements, including, without limitation, a balance sheet,
profit and loss statement, and statement of cash flows, with
supporting schedules, along with a current rent roll.
(b) No later than ninety (90) days after the end of
each fiscal year of Borrower, the Borrower shall provide to
Lender its: (i) annual compiled financial statements reflecting
its operations and that of its subsidiaries, including, without
limitation, a balance sheet, profit and loss statement and
statement of cash flows, with supporting schedules; and (ii) its
contingency liability listings.
(c) No later than thirty (30) days following the
submission by Borrower and DECADE COMPANIES, a Wisconsin general
partnership ("Decade") of their tax returns and all supporting
documentation therefor to the Internal Revenue Service, Borrower
and Decade shall provide copies of all such documentation to
Lender.
All of the foregoing reports and information must be provided by
Borrower and Decade to Lender in form and content acceptable to
Lender in its reasonable discretion and shall be certified to
Lender as to completeness and accuracy by Borrower or Decade, as
the case may be. All financial statements shall be prepared in
accordance with generally accepted accounting principles
consistently applied. Additionally, Borrower and Decade shall
furnish such additional financial information or reports as
Lender shall reasonably request from time to time during the term
of the Loan.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender as
follows:
4.1 Organization, Standing, Corporate Power. The
Borrower is a limited partnership duly formed, validly existing
and in good standing under the laws of the State of Wisconsin,
and is authorized to do business in the State of Florida. The
Borrower has appropriate power and authority to own its
properties and to carry on its business as now being conducted,
and the Borrower has appropriate power and authority to execute
and perform this Agreement and to deliver the Note and all other
documents, instruments and agreements provided for herein.
4.2 This Agreement. The execution and performance by
the Borrower of this Agreement, the borrowings hereunder, and the
execution and delivery of the Note and all other documents,
instruments and agreements provided for herein: (a) have been
duly authorized by all requisite partnership action; (b) will not
violate any provision of law or of the Borrower's Partnership
Agreement as amended to the date hereof; and (c) will not violate
or be in conflict with, result in a breach of, or constitute a
default under any indenture, agreement and other instrument to
which the Borrower is a party or by which it or any of its
properties is bound, or any order, writ, injunction or decree of
any court or governmental institution.
4.3 Litigation. There are no actions, suits or
proceedings pending, or to the knowledge of the Borrower,
threatened against or adversely affecting the Borrower at law or
in equity or before or by any federal agency or instrumentality,
domestic or foreign, which involve any of the transactions herein
contemplated or the possibility of any judgment or liability
which may result in any material and adverse change in the
business, operations, prospects, property or assets, or in the
condition, financial or otherwise, of the Borrower. The Borrower
is not in default with respect to any judgment, order, writ,
injunction, decree, or, to Borrower's knowledge, rule or
regulation of any court, or federal, state, municipal or other
governmental department.
4.4 Financial Statements. The Borrower has heretofore
furnished to the Lender balance sheets, income statements, and
other financial information which are correct and complete and
accurately present the financial condition and the results of the
operation of the Borrower as of the dates thereof. Since the
date of the last furnishing of said financial statements, there
has been no material adverse change in the financial condition of
the Borrower.
4.5 Taxes. The Borrower has filed or caused to be
filed all federal and state tax returns which are required to be
filed by applicable law, and Borrower has paid or caused to be
paid all taxes as shown on said returns or on any assessment
received by it and not being contested in good faith, to the
extent that such taxes have become due.
4.6 Other Instruments. Except as reflected on the
financial statements described in Section 4.4 hereof, the
Borrower is not a party to any agreement or instrument or subject
to any charter or other restrictions adversely affecting its
business, properties or assets, operations or condition,
financial or otherwise.
4.7 Property and Assets. The Borrower has good and
marketable title to all the property and assets reflected on the
most recent financial statements furnished to the Lender, except
such as have been disposed of in the ordinary course of business
since the date of said financial statements, and all such
property and assets are free and clear of mortgages, pledges,
liens, charges or other encumbrances, except as are reflected on
the financial statements.
4.8 Regulation U. No part of the proceeds of the Loan
will be used to purchase or carry, or to reduce or retire any
loan incurred to purchase or carry, any margin stocks (within the
meaning of Regulation U of the Board of Governors of the Federal
Reserve System) or to extend credit to others for the purpose of
purchasing or carrying any such margin stocks. The Borrower is
not engaged in the business of extending credit, nor is one of
the Borrower's important activities extending of credit, for the
purpose of purchasing or carrying such margin stocks. If
requested by the Lender, the Borrower shall furnish to the Lender
in connection with any loan hereunder a statement in conformity
with the requirements of Federal Reserve Form U-1 referred to in
said regulation.
4.9 Continuity of Representations and Warranties. All
of the foregoing representations and warranties shall be true and
correct at the time of the making of each advance under the Loan
pursuant to this Agreement.
ARTICLE V - CONDITIONS PRECEDENT
The obligation of the Lender to make the Loan hereunder
is subject to the following conditions precedent:
(a) Representations and Warranties. In order to
induce the Lender to enter into this Agreement and to make the
Loan herein provided for and disbursements thereunder, the
Borrower represents and warrants to the Lender that on the date
of each borrowing or disbursement hereunder, the representations
and warranties set forth in this Agreement shall be true and
correct on and as of the date of such borrowing or disbursement,
with the same force and effect as though such representations and
warranties had been made on and as of such date.
(b) No Default. At the time of each borrowing or
disbursement hereunder, the borrower has observed and performed
all of the terms, conditions and agreements set forth herein on
its part to be observed or performed and no "Event of Default"
(as that term is defined below), nor any event which, upon notice
or lapse of time or both, would constitute such an Event of
Default, shall have occurred and be continuing.
(c) Liens and Encumbrances. The properties and assets
of the Borrower, real, personal and mixed, are not subject to any
liens, encumbrances or security interests or outstanding
financing statements, whether filed or unfiled, except for liens
for taxes not yet due and liens, encumbrances or security
interests on personal or real property as reflected in the
Borrower's financial statements heretofore delivered to Lender or
which shall be paid out of the proceeds of the Loan.
(d) Litigation. There are no actions, suits,
proceedings or claims pending or threatened against or affecting
the Borrower, the result of which might substantially affect the
financial condition, business or operations of the Borrower.
ARTICLE VI - AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with the Lender that
from the date hereof and so long as the Loan is outstanding,
unless the Lender shall otherwise consent in writing deliver to
the Borrower, it will:
6.1 Partnership Existence. Do or cause to be done all
things necessary to preserve, renew and keep in full force and
effect Borrower's partnership existence, and all Borrower's
rights, licenses, permits and franchises required at the date
hereof, or which may be required in the future conduct of its
business, and comply with all laws and regulations applicable to
it that materially affect the Borrower, and conduct and operate
its business in the same lines and in substantially the same
manner in which presently conducted and operated, and at all
times maintain, preserve and protect all property used and useful
in the conduct of its business with respect to the Property, and
maintain same in good working order and condition.
6.2 Insurance. Keep the Property adequately insured
at all times by financially sound and reputable insurers, and
maintain such insurance to such extent and against such risks,
including liability insurance, fire, windstorm, and other risks
insured against by extended coverage as is acceptable to Lender
in its reasonable discretion. Borrower will furnish Lender with
a copy of such insurance policies containing an endorsement in
favor of Lender as loss payee as its interest may appear.
6.3 Obligations and Taxes. Pay all indebtedness and
obligations promptly and in accordance with normal terms, and pay
and discharge promptly all taxes, assessments and governmental
charges or levies imposed upon it or in respect of its property,
before the same shall become in default, as well as all lawful
claims for labor, materials and supplies or otherwise which, if
unpaid, might become a lien or charge upon such properties or any
part thereof.
6.4 Records. The Borrower will keep and maintain full
and accurate rent rolls and accounts and records of its
operations with respect to the Property, and will permit Lender
and its designated officers, employees, agents and
representatives, to have access thereto and to make examination
thereof at all reasonable times, to make audits, and to inspect
and otherwise check the Property.
ARTICLE VII - NEGATIVE COVENANTS
The Borrower covenants and agrees with Lender that from
the date hereof and so long as the Loan is outstanding, unless
the Lender shall otherwise consent in writing deliver to the
Borrower (which consent will not be unreasonably withheld), it
will not:
7.1 Indebtedness. With respect to the Property,
create or incur any indebtedness except in the ordinary course of
business for goods and services, and will not incur, create,
assume or permit to exist any indebtedness or liability for
borrowed money or any indebtedness evidenced by notes, bonds,
debentures or similar obligations, except for presently existing
indebtedness set forth in the financial statements heretofore
delivered to Lender and the Note evidencing the Loan described
herein.
7.2 Loans. With respect to the Property, guarantee,
endorse or assume any debt, or pledge its credit in any manner,
directly or indirectly, except in favor of Lender or in the
ordinary course of business.
7.3 Liens. Incur, create, assume or permit to exist
any mortgage, pledge, lien, charge, security interest or other
encumbrance of any nature whatsoever on the Property, except to
Lender, other than: (a) liens for taxes or assessments and
similar charges either: (i) not delinquent; or (ii) being
contested in good faith by appropriate proceedings and as to
which the Borrower shall have set aside on its books adequate
reserves; and (b) currently existing indebtedness consented to in
writing by Lender.
7.4 Change of Control. Make a material management or
ownership change in the composition of Decade, which effectively
changes the control of the Borrower.
7.5 Compliance with Laws Generally. Be in violation
of any law, ordinance, governmental rules or regulations to which
Borrower is subject, or fail to obtain any licenses, permits,
franchises or other governmental authorizations necessary to the
ownership of the Property, or to the conduct of its business,
which violation or failure to obtain might materially adversely
affect the business, prospects, profits, properties or condition
(financial or otherwise) of Borrower.
ARTICLE VIII - COLLATERAL
As security for the full and timely payment of the
Note, including future advances, together with interest thereon,
as well as any renewals, modifications or extensions thereof, and
to secure performance of all obligations of Borrower to Lender,
however or whenever created, Borrower covenants and agrees that
it has previously granted to Lender a first security interest
subject to no other liens, encumbrances or security interests in
and to all of the items of security as are set forth in the
Instruments of Security (collectively the "Collateral").
ARTICLE IX - DEFAULTS AND REMEDIES
9.1 Events of Default. If any one or more of the
following events (herein called "Events of Default") shall occur
for any reason whatsoever (and whether such occurrences shall be
voluntary or involuntary, or come about or be effected by
operation of law or pursuant to or in compliance with any
judgment, decree or order of any court, or any order, rule or
regulation of any administrative or governmental body), then
Lender shall be entitled to the remedies set forth in Section 9.2
of this Agreement. The Events of Default shall include, but not
be limited to, the following:
(a) Any representation or warranty made herein or
in any report, certificate, financial statement or other
instrument furnished in connection with this Agreement or the
borrowing hereunder shall prove to be false or misleading in any
material respect;
(b) Default beyond the applicable curative period
shall occur in the payment of interest or principal on any
indebtedness referred to herein, including the Note, when and as
the same shall become due and payable, whether at the due date
thereof or by acceleration or otherwise;
(c) Any default beyond the applicable curative
period shall occur in the due observance or performance of any
covenant, agreement or other provision of this Agreement or the
Loan Documents other than for the payment of money, including
without limitation the invalidation or loss of priority of any
lien or assignment contemplated to be given to Lender pursuant to
the Loan Documents;
(d) The Borrower shall: (i) apply for or consent
to the appointment of a receiver, trustee in bankruptcy for
benefit of creditors, or liquidator of it or any of its property;
(ii) admit in writing its inability to pay its debts as they
mature; (iii) make a general assignment for the benefit of
creditors; (iv) be adjudicated a bankrupt or insolvent; (v) file
a voluntary petition in bankruptcy, or a petition or an answer
seeking reorganization or an arrangement with creditors, or
seeking to take advantage of any bankruptcy, reorganization,
insolvency, readjustment of debt, dissolution or liquidation law
or statue or an answer admitting an act of bankruptcy alleged in
a petition filed against it in any proceeding under any such law;
or (vi) take any action for the purposes of effecting any of the
foregoing;
(e) An order, judgment or decree shall be entered
against the Borrower with the application, approval or consent of
the Borrower by any court of competent jurisdiction, approving a
petition seeking its reorganization or appointing a receiver,
trustee or liquidator of the Borrower, or of all or a substantial
part of the assets thereof, and such order, judgment or decree
shall continue unstayed and in effect for any period of sixty
(60) days from the date of entry thereof; or
(f) Borrower's corporate existence shall be
dissolved or terminated, whether voluntarily or involuntarily.
9.2 Remedy. Upon the occurrence of any Event of
Default, Lender may, at its option, declare all indebtedness of
principal and interest due and payable, whereupon the Note
(notwithstanding any provisions hereof or thereof) shall be
immediately due and payable, and Lender shall have and may
exercise from time to time any and all rights and remedies
available to it under any applicable law; and Borrower shall
promptly pay all costs of Lender of collection of any and all
liabilities, and enforcement of rights hereunder, including
reasonable attorney's fees, and legal expenses of any repairs to
any of the Collateral, and expenses of repairs to any realty or
other property to which any of the Collateral may be affixed.
Any notice of sale, disposition or other intended action by
Lender sent to Borrower, at the address of Borrower specified
herein or at any other address shown on the records of the Lender
at least ten (10) days prior to such action, shall constitute
reasonable notice to Borrower. Expenses of retaking, holding,
preparing for sale, selling, or the like shall include Lender's
reasonable attorney's fees and legal expenses. All rights,
powers and remedies contained herein or in any other agreement,
instrument or document executed in connection herewith are
cumulative.
ARTICLE X - MISCELLANEOUS
10.1 Notices. All notices, requests or other
communications to be given to the Borrower or the Lender
hereunder shall be sufficiently given and shall be deemed given,
when given by hand-delivery to such person at the street address
of such person set forth below, or when mailed by registered or
certified mail, postage prepaid, addressed as follows:
If to the Borrower: Brookfield Lakes Corporate Center
250 Patrick Boulevard, Suite 140
Brookfield, WI 53045
If to Lender: 111 Second Avenue Northeast
St. Petersburg, FL 33701
The parties hereto may, by notice given under this Section 10.1
to the others, designate any further or different addresses to
which subsequent notices, requests or other communications shall
be sent.
10.2 Survival of Representations. All covenants,
agreements, representations and warranties made herein and in the
certificates delivered pursuant hereto shall survive the making
by Lender of the Loan herein contemplated and the execution and
delivery to Lender of the Note evidencing such Loan and shall
continue in full force and effect so long as any indebtedness
created hereunder is outstanding and unpaid. All covenants and
agreements by or on behalf of either party which are contained or
incorporated in this Agreement shall bind and inure to the
benefit of the successors and assigns of both parties hereto.
10.3 Effect of Delay. Neither any failure nor any
delay on the part of Lender in exercising any right, power or
privilege hereunder or under the Note shall operate as a waiver
thereof, nor shall a single or partial exercise thereof preclude
any other or further exercise or the exercise of any other right,
power or privilege.
10.4 Expenses. Subject to the terms of the Loan
Commitment Letter, the Borrower will pay, and indemnify and hold
harmless the Lender against any liability with respect to, all
out-of-pocket expenses reasonably incurred by Lender in
connection with the preparation of this Agreement or the
borrowings hereunder. Additionally, the Borrower will pay and
indemnify and hold harmless the Lender against any liability with
respect to, and all out-of-pocket expenses reasonably incurred by
Lender in connection with the enforcement of the rights of Lender
in connection with this Agreement, or with the Loan made or the
Note issued hereunder, including but not limited to the fees of
and expenses of counsel for Lender. The provisions of this
Section 10.4 shall survive the execution of this Agreement and
the repayment of the Note.
10.5 Modification and Waivers. No modification or
waiver of any provision of this Agreement or of the Note nor
consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be in writing, and then
such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or
demand on the Borrower in any case shall thereby entitle the
Borrower to any other or further notice or demand in the same,
similar or other circumstances.
10.6 Business Day. Should any installment on the Note
become due and payable on other than a business day of the
Lender, the maturity thereof shall be extended to the next
succeeding business day with interest on the principal amount
thereof at the rate set forth therein.
10.7 Remedies Cumulative. Any rights or remedies of
the Lender hereunder or under the Note or any other security
agreement or writing shall be cumulative and in addition to every
other right or remedy contained therein or herein, whether now
existing or hereafter at law or in equity or by statute or
otherwise.
10.8 Binding Agreement. This Agreement shall be
binding upon Borrower and its successors and assigns and the
terms hereof shall inure to the benefit of Lender and its
successors and assigns.
10.9 Exhibits. All references to "Exhibits" contained
herein are references to exhibits attached to the Agreement, the
terms and conditions of which are made a part hereof for all
purposes, the same as if set forth herein verbatim.
10.10 Number and Gender of Words. Whenever herein the
singular number is used, the same shall include the plural where
appropriate, and words of any gender shall include each other
gender where appropriate.
10.11 Captions. The captions, headings, and
arrangements used in this Agreement are for convenience only and
do not in any way affect, limit, amplify, or modify the terms and
provisions hereof.
10.12 Invalid Provisions. If any provision of this
Agreement is held to be illegal, invalid, or unenforceable under
present or future laws effective during the term of this
Agreement, such provision shall be fully severable, and this
Agreement shall be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised a part.
10.13 All Loans Constitute One Loan. All loans and/or
advances made hereunder shall constitute one loan and the
obligations of such loans and/or advances shall constitute one
obligation secured by the Collateral provided for herein.
10.14 Construction. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Florida, regardless of the state in which it is executed.
10.15 Nonrecourse. The obligations of the Borrower
hereunder are subject to the Nonrecourse provisions contained in
the Mortgage.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement the day and year first above written.
Signed, sealed and delivered REPUBLIC BANK, a Florida banking
in the presence of: corporation
__________________________ By:___________________________________
Its ________________ President
__________________________ (CORPORATE SEAL)
As to Lender
DECADE COMPANIES INCOME PROPERTIES-
A LIMITED PARTNERSHIP, a Wisconsin
limited partnership authorized to do
__________________________ business in the State of Florida, by
its sole general partner:
/s/_______________________ By: DECADE COMPANIES, a Wisconsin
As to Borrower general partnership, by its
managing general partner:
By: /s/______________________________
JEFFREY KEIERLEBER
<PAGE>
STATE OF FLORIDA )
COUNTY OF _______ )
The foregoing instrument was acknowledged before me this ___
day of ________________, 1996, by _______________________, the _______
__________ President of REPUBLIC BANK, a Florida banking corporation,
on behalf of the corporation.
Personally Known __________ OR Produced Identification
Type of Identification Provided ______________________
___________________________________
SIGNATURE
___________________________________
NAME LEGIBLY PRINTED,
TYPEWRITTEN OR STAMPED
NOTARY PUBLIC
(SEAL)
My Commission Expires:
STATE OF WISCONSIN )
COUNTY OF MILWAUKEE )
The foregoing instrument was acknowledged before me this
15th day of May, 1996, 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 __________ OR Produced Identification
Type of Identification Provided ______________________
___________________________________
SIGNATURE
/s/________________________________
NAME LEGIBLY PRINTED,
TYPEWRITTEN OR STAMPED
NOTARY PUBLIC
(SEAL)
My Commission Expires:
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
<PAGE>
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:
<PAGE>
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.
<PAGE>
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.
EXHIBIT 10.10
NONRECOURSE AGREEMENT
November 22, 1989
Decade Companies Income Properties -
A Limited Partnership
Brookfield Lakes Corporate Center
18000 West Sarah Lane
Brookfield, Wisconsin 53005
Attention: Mr. Jeffrey Keierleber
Re: The Meadows Apartments, Madison, Wisconsin
Dear Mr. Keierleber:
This letter will evidence certain agreements which we have
reached regarding the Four Million One Hundred Thousand and
No/100 Dollars ($4,100,000.00) loan by Home Savings of America,
F.A., a federal savings and loan association (the "Lender") to
Decade Companies Income Properties - A Limited Partnership, a
Wisconsin limited partnership (the "Borrower"), said loan being
evidenced by, among other things, that certain Promissory Note
Adjustable Interest Rate of even date herewith, executed by
Borrower payable to the order of Lender in the original principal
amount of Four Million One Hundred Thousand and No/100 Dollars
($4,100,000.00), as therein provided (the "Note"), and secured
by, among other things, a Mortgage and Security Agreement against
Borrower's fee simple interest in and to real and personal
property located in Madison, Dane County, Wisconsin, and commonly
known as 237-293 and 301-417 North Thompson Drive (the "Subject
Property"). Reference to said Note, Mortgage and Security
Agreement is hereby made for all purposes as if the same were set
forth herein in their entirety.
Notwithstanding any provision to the contrary contained in
the Note, the Mortgage or in any other instruments securing the
Note (collectively, the "Loan Documents"), the Note shall be
nonrecourse against Borrower. Recourse in any suit for damages
or any money judgment against Borrower for principal and interest
on the Note shall be limited to (i) the Property and the income,
including, among other things, rental income therefrom, (ii) any
funds held by Lender pursuant to the Note or the Loan Documents,
(iii) insurance and condemnation awards and proceeds, and (iv)
escrow and security deposits. Lender shall not be entitled to
obtain a personal or deficiency judgment for nonpayment of any
amount due under the Note or any Loan Document against Borrower,
and no such judgment shall be sought or entered. Notwithstanding
the foregoing, nothing in this paragraph shall prejudice the
rights of Lender as against Borrower or any other entity now or
hereafter liable under any guaranty, bond, lease, policy of
insurance or other agreement which Borrower or such other entity
may have given Lender for compliance with any of the terms,
covenants, or conditions of the Note or any other Loan Documents
that does not create personal liability on the part of Borrower
for the payment of principal and interest on the Note. Borrower
expressly understands and agrees that nothing contained in this
paragraph shall in any manner constitute or be deemed to be a
release or impairment of the indebtedness evidenced by the Note
or an impairment of the lien of any of the Loan Documents or any
other liens, assignments, rights or security interests securing
the Note or shall otherwise affect or impair the enforceability
of the Note or any other Loan Document except to the extent
expressly provided above. Furthermore, nothing in this paragraph
shall preclude Lender from foreclosing under any of the Loan
Documents, from proceeding against any and all security held by
Lender, or from enforcing any and all of Lender's rights and
remedies at law or in equity, including, without limitation, the
right to have a receiver appointed in case of a default under the
Note or the Loan Documents, except to the extent expressly
provided above.
Notwithstanding the foregoing provisions, Borrower shall be
fully liable to Lender for all accounts receivable from the
Property, including such rents, issues and profits that accrue
from and after the date of the occurrence of any default,
notwithstanding any delay on the part of Lender in obtaining
title, by foreclosure or otherwise, to the Property, and, to the
extent permitted by law, for all damages (including, without
limitation, attorneys' fees) incurred or suffered by Lender as a
result of or in connection with (a) any intentional or willful
fraud or misrepresentation by Borrower in connection with the
delivery of the Note or the performance of Borrower's obligations
under the Loan Documents, (b) the removal or disposition of any
personal property or fixtures relating to the Property in
violation of any Loan Documents, or (c) the conversion,
misapplication or disposal of any insurance proceeds or any
awards or other sums resulting from condemnation or threat of
exercise of the power of eminent domain with respect to the real
or personal property encumbered by the Loan Documents in
violation of any Loan Document.
Nothing herein contained shall limit or impair Borrower's
liability for the full performance of any other obligations set
forth in the Loan Documents, including without limitation,
Borrower's obligation to (a) pay all taxes and assessments levied
against the Property, (b) keep every part of the Property in
first class condition and free and clear of all mechanic's and
materialmen's claims and liens and (c) prevent waste to any part
of the Property.
If the foregoing correctly represents your understanding of
our agreements on these matters, please so indicate by signing
this letter in the space indicated below.
HOME SAVINGS OF AMERICA, F.A.,
a federal savings and loan
association
By:/s/ Raymond L. Rissmann
Raymond L. Rissmann, its Vice
President
ACCEPTED AND AGREED TO THIS
22nd day of November, 1989.
Decade Companies Income
Properties - A Limited
Partnership, acting herein by
and through Decade Companies,
a Wisconsin general partner-
ship, its sole general partner
By:/s/ Jeffrey Keierleber
Jeffrey Keierleber, a general partner
EXHIBIT 10.11
MORTGAGE CONSOLIDATION AND MODIFICATION AGREEMENT
THIS MORTGAGE CONSOLIDATION AND MODIFICATION AGREEMENT,
made as of the 27th day of December, 1989, between PELICAN SOUND
LIMITED PARTNERSHIP, a limited partnership organized and existing
under the laws of the State of Florida having an office at 3505
Frontage Road, Suite 130, Tampa, Florida 33607 ("Mortgagor"),
and RIVER BANK AMERICA (formerly known as East River Savings
Bank), a banking corporation organized and existing under the
laws of the State of New York having its principal office and
place of business at 145 Huguenot Street, New Rochelle, New York
10801 ("Mortgagee").
W I T N E S S E T H :
WHEREAS, Mortgagee is the owner and holder of the
following mortgages, together with the notes, bonds or
obligations secured thereby, each encumbering the premises (the
"Premises") generally known as and by street address 10200 Gandy
Boulevard North, St. Petersburg, Florida and being more
particularly described in Schedule A annexed hereto and
incorporated herein:
(i) Building Loan Mortgage dated September 30, 1987 in
the original principal amount of $15,150,000 made by Mortgagor,
as mortgagor, in favor of Mortgagee, as mortgagee, recorded in
the Public Records of Pinellas County, Florida on October 2, 1987
in Official Record Book 6593, Page 1965 ("Mortgage I"); and
(ii) Mortgage dated as of the date hereof in the
original principal amount of $600,000 made by Mortgagor, as
mortgagor, in favor of Mortgagee, as mortgagee, intended to be
recorded in the Public Records of Pinellas County, Florida
immediately prior to the recordation hereof ("Mortgage II");
WHEREAS, there is now owing on Mortgage I and Mortgage
II (collectively, the "Existing Mortgages") the principal amount
of Fifteen Million Seven Hundred Fifty Thousand and 00/100
($15,750,000) Dollars; and
WHEREAS, Mortgagor and Mortgagee desire to and have
agreed in the manner hereinafter set forth to (i) combine,
coordinate and consolidate the Existing Mortgages and the liens
thereof, (ii) modify and restate each of the Existing Mortgages
and the liens thereof and (iii) modify and restate the time and
manner of payment and all of the other terms and provisions of
the Existing Mortgages;
NOW, THEREFORE, in consideration of the mutual premises
herein contained and other good and valuable consideration, the
receipt and sufficiency whereof is hereby acknowledged, Mortgagor
and Mortgagee hereby agree as follows:
1. Mortgagor and Mortgagee hereby agree that each of
the Existing Mortgages and the respective liens thereof are
hereby combined and consolidated so that together they shall
hereafter constitute in law but one first mortgage lien upon the
Premises securing an original principal indebtedness of Fifteen
Million Seven Hundred Fifty Thousand and 00/100 ($15,750,000)
Dollars lawful money of the United States or so much thereof as
may be advanced together with the interest earned thereon, with
the same intent and with like effect as if one mortgage in the
principal amount of $15,750,000 had been executed and delivered
by Mortgagor to Mortgagee.
2. Mortgagor and Mortgagee further agree that the
terms and conditions of the Existing Mortgages are hereby
modified, amended and restated in their entirety so that the
terms, covenants and conditions of the Existing Mortgages shall
be the same as those set forth in Exhibit A annexed hereto and
incorporated herein by reference, and that the Existing
Mortgages, as so modified, amended and restated in their
entirety, are hereby ratified and confirmed in all respects by
Mortgagor and Mortgagee. The Existing Mortgages, as so
consolidated, modified, amended and restated in their entirety,
are hereinafter, collectively, the "Consolidated Mortgage."
3. Mortgagor and Mortgagee further agree that the
principal balance of the Consolidated Mortgage, together with all
accrued and unpaid interest thereon, shall be due and payable in
accordance with the terms, covenants and conditions of that
certain Note Consolidation and Modification Agreement of even
date herewith between Mortgagor and Mortgagee.
4. This Agreement may not be modified, amended,
waived, changed or terminated orally, but only by an agreement in
writing signed by the party against whom the enforcement of any
modification, amendment, waiver, change or termination is sought.
5. This Agreement shall be binding upon and inure to
the benefit of Mortgagor and Mortgagee and their respective
successors and assigns.
6. This Agreement may be executed in any number of
duplicate originals and each such duplicate original shall be
deemed to constitute but one and the same instrument.
7. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida.
8. Mortgagor represents and warrants to the Mortgagee
that the principal balance of $15,750,000 now remains outstanding
under the Consolidated Mortgage, that there are no counterclaims,
defenses or offsets to the principal indebtedness secured by the
Consolidated Mortgage, and that Mortgagor (and the undersigned
representative of Mortgagor) has the full power, authority and
legal right to execute this Agreement and to keep and observe all
of the terms of this Agreement on Mortgagor's part to be
performed and observed.
9. MORTGAGOR AND MORTGAGEE HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR
THE MORTGAGE, OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR MORTGAGEE ACCEPTING THIS AGREEMENT AND
EXTENDING CREDIT TO MORTGAGOR.
IN WITNESS WHEREOF, Mortgagor and Mortgagee have
executed this Mortgage Consolidation and Modification Agreement
as of the day and year first set forth above.
PELICAN SOUND LIMITED PARTNERSHIP
By: HGC-Pelican Sound Limited
Partnership, general partner
By:/s/DeLaneGarner
DeLane Garner, general partner
RIVER BANK AMERICA
By:/s/Donald R. Parrish
Name: Donald R. Parrish
Title: Senior Vice President
<PAGE>
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK)
On the 27th day of December, 1989, before me personally came
DeLane Garner, to me known to be the individual who executed the
foregoing instrument and, who, being by me duly sworn, did depose
and say that he is a general partner of HGC-Pelican Sound Limited
Partnership, the limited partnership which is the general partner
of Pelican Sound Limited Partnership, the partnership described
in and which executed the above instrument; and that he executed
the foregoing instrument in the firm name of HGC-Pelican Sound
Limited Partnership; that HGC-Pelican Sound Limited Partnership,
the general partner, executed the foregoing instrument in the
firm name of Pelican Sound Limited Partnership; and that he had
authority to sign the same, and acknowledged that he executed the
same as the act and deed of said partnership.
/s/Vicki I. Goldstein
Notary Public
Vicki I. Goldstein
Notary Public, State of New York
No. 41-4875336
Qualified in Queens County
Commission Expires Nov. 3, 1990
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK)
On the 27th day of December, 1989, before me personally came
Donald R. Parrish to me known, who, being by me duly sworn did
depose and say that he resides at 145 Huguenot Street, New
Rochelle, that he is a Vice President of River Bank America, the
banking corporation described in and which executed the above
instrument; and that he signed his name thereto by order of the
board of directors of said banking corporation.
/s/Vicki I. Goldstein
Notary Public
Vicki I. Goldstein
Notary Public, State of New York
No. 41-4875336
Qualified in Queens County
Commission Expires Nov. 3, 1990
<PAGE>
SCHEDULE A
That part of the SE 1/4 of Section 18, and that part of the NE
1/4 of Section 19, Township 30 South, Range 17 East, Pinellas
County, Florida, more particularly described as follows:
Beginning at a point on the north line of Section 19, Township 30
South, Range 17 East, Pinellas County, Florida, which point is N.
89 deg. 54'50" W., 327.22 feet from the northeast corner of said
section; thence S. 00 deg. 09'57" W., 372.67 feet; thence N. 81
deg. 08'18" E., 218.93 feet to an intersection with a line which
is 111.00 feet west of and parallel with the east boundary of
said section; thence S. 00 deg. 09'57" W., along said line 652.38
feet to an intersection with the south line of the north 3/4 of
the north 1/2 of the northeast 1/4 of said section; thence N. 89
deg. 55'46" W., along said line 1472.68 feet; thence N. 00 deg.
14'59" E., 790.91 feet to an intersection with the south right-
of-way line of the new alignment of Gandy Boulevard (S.R. 600, a
varying width right-of-way); thence along said right-of-way by
the following six (6) courses:
1. - N. 79 deg. 47'00" E., 258.08 feet;
2. - N. 71 deg. 14'32" E., 102.50 feet;
3. - N. 65 deg. 57'53" E., 293.84 feet, to a point
on a curve;
4. - Along the arc of a curve to the right,
concave to the southeast, radius 2809.79 feet, delta 3 deg.
00'03", arc 147.16, chord 147.14, N. 70 deg. 10'36" E.;
5. - Thence leaving said curve N. 71 deg. 40'31"
E., 299.68 feet;
6. - N. 72 deg. 49'16" e., 225.58 feet;
Thence leaving said right-of-way S. 00 deg. 31'53" W., 210.57
feet to the above mentioned point of beginning.
and now known as;
Lot 1, Block 1, PELICAN SOUND, Plat Book 98, Pages 3 and 4,
Public Records of Pinellas County, Florida.
<PAGE>
EXHIBIT A
MORTGAGE
PELICAN SOUND LIMITED PARTNERSHIP
to
RIVER BANK AMERICA
County: Pinellas
City: St. Petersburg
State: Florida
Dated: as of December 27, 1989
_________________________________________________________________
Record and return by mail to:
This instrument was prepared by Peter R. Batten, Esq.
of the law firm listed below and after filing return to:
MUDGE ROSE GUTHRIE ALEXANDER & FERDON
425 Park Avenue
New York, New York 10022
Attention: Ms. Susan Inkeles
(7020.22)
_________________________________________________________________
MORTGAGE
THIS MORTGAGE, made as of the 27th day of December
1989, by and between PELICAN SOUND LIMITED PARTNERSHIP, a
Florida limited partnership having an office at 3505 Frontage
Road, Suite 130, Tampa, Florida 33607 (the "Mortgagor") and
RIVER BANK AMERICA, a New York banking corporation having its
principal place of business and office at 145 Huguenot Street,
New Rochelle, New York 10801 (the Mortgagee").
W I T N E S S E T H :
THAT to secure the payment of an indebtedness in the
principal sum of FIFTEEN MILLION SEVEN HUNDRED FIFTY THOUSAND and
00/100 ($15,750,000) DOLLARS, lawful money of the United States
or so much thereof as may be advanced together with the interest
earned thereon, to be paid according to certain bonds, notes or
obligations which have been consolidated and modified pursuant to
a Note Consolidation and Modification Agreement between the
Mortgagor and the Mortgagee bearing even date herewith (such
instruments, as consolidated and modified and as the same may be
hereafter amended, modified or extended, being hereinafter the
"Note"), and to secure the payment of such future or additional
advances as may be made by the Mortgagee, at its option, to the
Mortgagor, or its successor in title, for any purpose, provided
that all those advances are to be made within twenty (20) years
from the date of this Mortgage, or within such lesser period of
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 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 THIRTY-FIVE MILLION SEVEN HUNDRED FIFTY THOUSAND and
00/100 ($35,750,000) DOLLARS, plus interest, and any
disbursements made for the payment of taxes, levies or insurance
on the property covered by the lien on this Mortgage with
interest on those disbursements; the Mortgagor hereby grants,
bargains, sells, conveys, assigns, transfers, mortgages, pledges,
delivers, sets over, warrants and confirms to the Mortgagee:
ALL that certain plot, piece or parcel of land, with
the buildings and improvements thereon erected or to be erected
(the "Premises"), more particularly bounded and described in
Schedule A annexed hereto and made a part hereof;
TOGETHER with all and singular the tenements,
hereditaments, easements, riparian and other rights thereunto now
or hereafter belonging or in anywise appertaining; and all right,
title and interest, if any, of the Mortgagor of, in and to the
land lying in the streets, roads or avenues, open or proposed,
ways, streams and alleys in front of and adjoining the Premises
and of, in and to any strips or gores of land adjoining the
Premises and the reversion or reversions, remainder and
remainders, rents, issues and profits thereof;
TOGETHER with all fixtures, chattels and articles of
personal property owned by the Mortgagor and now or hereafter
attached to or located in or upon the Premises, and used or
usable in connection with any present or future operation or
letting of the Premises or the activities at any time conducted
therein (collectively, "Building Equipment"), including but not
limited to furnaces, boilers, oil burners, radiators and piping,
coal stokers, plumbing and bathroom fixtures, refrigeration, air
conditioning and sprinkler systems, wash-tubs, sinks, gas and
electric fixtures, stoves, ranges, awnings, screens, window
shades, elevators, motors, dynamos, refrigerators, kitchen
cabinets, incinerators, plants and shrubbery and all other
machinery, appliances, fittings, furniture, furnishings and
fixtures of every kind used in the operation of the buildings
standing or hereafter erected on the Premises, together with any
and all replacements thereof and additions thereto, and all
right, title and interest of the mortgagor in and to any Building
Equipment which may be subject to any security agreements, as
defined in the Uniform Commercial Code of the State of Florida
("Security Agreements"), superior in lien to the lien of this
Mortgage; it being understood and agreed that all Building
Equipment is part and parcel of the Premises and appropriated to
the use thereof and, whether affixed or annexed to the Premises
or not, shall, for the purpose of this Mortgage, be deemed
conclusively to be real estate and mortgaged hereby; and the
Mortgagor agrees to execute and deliver, from time to time, such
further instruments (including further Security Agreements) as
may be requested by the Mortgagee to confirm the lien of this
Mortgage on any Building Equipment;
TOGETHER with (a) any and all awards, including
interest thereon, heretofore and hereafter made to the Mortgagor
for the taking by eminent domain of the whole or any part of the
Premises or any easement therein, including any awards for
changes of grade of streets, which awards are hereby assigned to
the Mortgagee, who is hereby authorized to collect and receive
the proceeds of such awards and to give proper receipts and
acquittances therefor, and to apply the same toward the payment
of the mortgage debt, notwithstanding the fact that the amount
owing thereon may not then be due and payable and their Mortgagor
hereby agrees, upon request, to make execute and deliver any and
all instruments sufficient for the purpose of confirming such
alignment of such awards to the Mortgagee, free, clear and
discharged of any encumbrances of any kind or nature whatsoever;
(b) any unearned premiums on any hazard, casualty, liability, or
other insurance policy carried by the Mortgagor for the benefit
of the Mortgagee and/or the Premises; and (c) the Mortgagor's
rights under any and all insurance policies, contracts, permits,
licenses, plans or intangibles now or hereafter dealing with,
affecting or concerning said Premises, including, but not limited
to, all contracts of the Mortgagor for or related to the
management of the improvements on or upon the Premises, and all
of the Mortgagor's rights arising from or growing out of such
contracts, including surety bonds and any other related choses-
in-action; and
TOGETHER with (a) the Mortgagor's rights further to
encumber the Premises for debt; the Mortgagor hereby (1)
representing as a special inducement to the Mortgagee to make the
loan secured hereby that, as of the date hereof, there are no
encumbrances to secure debt junior to this Mortgage and (2)
covenanting that there are to be none as of the date when this
Mortgage becomes of record and thereafter will be none, except,
encumbrances having the prior written consent of the Mortgagee;
(b) all of the Mortgagor's rights to enter into any lease or
lease agreement affecting the Premises. (As hereinafter used the
term "Premises" shall also include all of the property and other
rights described in the aforesaid "Together" paragraphs.)
PROVIDED, HOWEVER, that these presents are upon the
condition that if the Mortgagor shall pay or cause to be paid to
the Mortgagee the principal and all interest payable in respect
to the Note and any future advance made hereunder at the time and
in the manner stipulated therein and herein, all without any
deduction or credit for taxes or other similar charges paid by
the Mortgagor, and shall keep, perform and observe all and
singular the covenants and promises in the Note and any future
advance agreement, and any renewal, extension or modification
thereof, and in this Mortgage expressed to be kept, performed and
observed by and on the part of the Mortgagor, all without delay,
then this Mortgage, and all the interests and rights hereby
granted, bargained, sold, conveyed, assigned, transferred,
mortgaged, pledged, delivered, set over, warranted and confirmed,
shall cease, terminate and be void, but shall otherwise remain in
full force and effect.
The Mortgagor represents and warrants to and covenants
and agrees for the benefit of the Mortgagee that the Mortgagor
has good and marketable title to the Premises and is lawfully
seized and possessed of the Premises in fee simple and has good
right to sell and convey the same; that the Premises are
unencumbered except as has been herein expressly provided; and
that the Mortgagor will forever warrant and defend the Premises
unto the Mortgagee against the lawful claims and demands of all
persons whomsoever and shall make such further assurances to
perfect fee simple title to the Premises in the Mortgagee as
reasonably may be required. The Mortgagor further covenants and
agrees with the Mortgagee as follows:
1. That the Mortgagor will pay all sums due the
Mortgagee at the time and in the manner provided under the Note,
this Mortgage, any instrument evidencing a future advance and any
other instrument evidencing and/or securing the indebtedness
secured hereby and the Mortgagor will otherwise perform, comply
with and abide by each and every of the stipulations, agreements,
conditions and covenants contained in the Note, this Mortgage,
and every other instrument evidencing and/or securing the
indebtedness secured hereby.
2. (a) That the Mortgagor will keep all of the
buildings on the Premises and Building Equipment insured for the
benefit of the Mortgagee, with companies approved by the
Mortgagee, (i) against loss or damage by fire, (ii) by means of
an extended coverage endorsement, against loss or damage by
windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicle and smoke, (iii) against war risks
as, when and to the extent such insurance is obtainable from the
United States of America or an agency thereof, (iv) against loss
of rentals due to any of the foregoing clauses, (v) against loss
by flood if the Premises are located in an area identified by the
Secretary of Housing and Urban Development as an area having
special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968, as
amended, and (vi) when and to the extent required by the
Mortgagee, against any other risk insured against by persons
operating like properties in the locality of the Premises; that
the Mortgagor will assign and deliver to the Mortgagee the
policies of such insurance and the proceeds thereof; that the
Mortgagor will reimburse the Mortgagee for any premiums paid for
insurance made by the Mortgagee on the Mortgagor's default in
taking out such insurance, or in so assigning and delivering the
policies, together with interest thereon at the Default Rate (as
defined in Article 4 hereof); (b) that such insurance shall be
provided by policies written in terms and amounts, and by
companies, satisfactory to the Mortgagee, and losses thereunder
shall be payable to the Mortgagee pursuant to the equivalent of a
New York standard mortgagee endorsement (non-contributing); (c)
that regardless of the types or amounts of insurance required and
approved by the Mortgagee, the Mortgagor will assign and deliver
to the Mortgagee all policies of insurance acquired by the
Mortgagor to insure against any loss or damage to the Premises,
as additional security for the indebtedness; (d) that not less
than thirty (30) days prior to the expiration date of each policy
furnished by the Mortgagor pursuant to this Article, the
Mortgagor will deliver to the Mortgagee a renewal policy or
policies marked "premium paid" or accompanied by other evidence
of payment satisfactory to the Mortgagee, which policy shall be
non-cancelable without at least thirty (30) days' advance written
notice to Mortgagee and Mortgagee shall receive the replacement
or renewal policy from the Mortgagor at least thirty (30) days
prior to the expiration of any expiring policy; (e) that in the
event of a foreclosure of this Mortgage, the purchaser of the
Premises shall succeed to all the rights of the Mortgagor,
including any rights to the proceeds of insurance and to unearned
premiums, in and to all policies of insurance assigned and
delivered to the Mortgagee pursuant to this Article 2; and (f)
that, the Mortgagee shall be entitled to retain and apply the
proceeds of any insurance, whether against fire or other hazard,
to the payment of the indebtedness secured hereby, or, if the
Mortgagee, in its sole discretion shall so elect, the Mortgagee
may hold any or all of such proceeds for application to payment
of the cost of restoration (the "Restoration Cost") upon such
terms and conditions as the Mortgagee shall elect; provided,
however, in the event of damage to or destruction of all or any
portion of the Premises by fire or other casualty and the
Restoration Cost is less than $500,000, the Mortgagee shall
permit the insurance proceeds received on account thereof to be
made available to the Mortgagor for the purpose of repairing and
restoring the Premises, provided that (A) no default then exists
hereunder or under the Note or any of the other documents
evidencing and/or securing the loan evidenced by the Note and
secured by this Mortgage, (B) the Mortgagor shall forthwith
proceed with the repair and restoration of the Premises as nearly
as possible to the condition same were in immediately prior to
such fire or other casualty, (C) the Mortgagee shall be satisfied
that upon completion of such repair and restoration the gross
cash flow and net cash flow of the Premises shall be restored to
a level at least equal to that which existed immediately prior to
the date of such fire or other casualty, and (D) the Mortgagee
shall be satisfied, in its sole and absolute discretion, that the
Premises can be completed to the condition same were in
immediately prior to such fire or other casualty by a date not
later than three (3) months prior to the "Maturity Date" (as
defined in the Note). If the Mortgagee is required or elects to
hold the proceeds for application to payment of the Restoration
Cost, said insurance proceeds shall be deposited in an interest
bearing account and paid out from time to time as such
restoration progresses upon the written request of the Mortgagor.
Each such request shall be accompanied by the following:
1. A certificate signed by an officer of the
Mortgagor or a general partner of the Mortgagor,
as the case may be, and by the architect or
engineer in charge of the restoration (selected by
the Mortgagor and approved by the Mortgagee),
dated not more than 30 days prior to such request,
setting forth the following:
(A) (i) that the sum then requested has been
properly paid, either by the Mortgagor or by
another, or is justly due, to contractors,
subcontractors, materialmen, engineers,
architects or other persons who have rendered
services or furnished materials for the
restoration therein specified, (ii) the names
and addresses of such persons, (iii) a brief
description of such services and materials,
(iv) the several amounts so paid or due to
each of said persons in respect thereof, (v)
that no part of such expenditures has been or
is being made the basis, in any previous or
then pending request, for the withdrawal of
insurance proceeds held by the Mortgagee,
(vi) that no part of such expenditures has
been paid or reimbursed out of any insurance
proceeds received by the Mortgagor, and (vii)
that the sum then requested does not exceed
the value of the services and materials
described in the certificate;
(B) that, except for the amount, if any, stated
in such certificate, pursuant to the
foregoing clause (1)(A), to be due for
services and materials, there is no
outstanding indebtedness known to the persons
signing such certificate, after due inquiry,
which is then due for labor, wages,
materials, supplies or services for such
restoration; and
(C) that the cost, as estimated by the persons
signing such certificate, of the restoration
required to be done subsequent to the date of
such certificate in order to complete the
same, does not exceed the remaining insurance
proceeds held by the Mortgagee after payment
of the sum requested in such certificate.
2. Waivers of liens satisfactory to the Mortgagee
covering that part of the work previously paid for
and a title company or official search, or other
evidence satisfactory to the Mortgagee, showing
that there has not been filed with respect to the
Premises any vendor's, contractor's, mechanic's,
laborer's or materialman's statutory or similar
lien which has not been discharged of record,
except such as will be discharged upon payment of
the sum requested in such certificate.
Upon compliance with the foregoing provisions, the Mortgagee
shall, out of such insurance proceeds, pay or cause to be paid,
either to the Mortgagor or to the persons named in such
certificate, pursuant to the foregoing clause (1)(A), the
respective amounts stated therein to have been paid or to be due,
as the case may be, less ten (10%) percent retainage, which
retainage shall be paid to the Mortgagor upon request therefor
and presentation of the certificate referred to in the foregoing
clause (1)(A) following the completion of the restoration of the
improvements and payment in full of the cost thereof.
If the insurance proceeds at the time available for the
restoration of the improvements, less the actual cost, fees and
expenses, if any, incurred in connection with the adjustment of
the loss, shall be insufficient to pay the entire cost of such
restoration, the Mortgagor will pay the deficiency and will, upon
request by the Mortgagee, deposit with the Mortgagee a sum equal
to such deficiency.
Upon completion of the restoration of the improvements and
payment in full of the cost thereof, or upon failure of the
Mortgagor promptly to commence or diligently to continue such
restoration, the remaining insurance proceeds shall be applied by
the Mortgagee toward payment of the then outstanding indebtedness
secured hereby.
It is intended that no trust shall be created by the receipt by
the Mortgagee of any insurance proceeds and nothing herein
contained shall prevent the Mortgagee from applying at any time
the whole or any part of such proceeds to cure any default under
this Mortgage or any document executed in connection therewith.
Such work and the performance thereof shall be subject to and
shall be performed in accordance with the following provisions:
(i) the same shall be performed in a first class
workmanlike manner, at the Mortgagor's sole cost
and expense, and shall not weaken or impair the
structural strength, or lessen the value, of such
buildings as shall be on the Premises at the time,
or change the purposes for which such buildings
may be used;
(ii) the same shall be made according to plans and
specifications therefor which, provided the
estimated cost thereof is more than $50,000, shall
be first submitted to and approved in writing by
the Mortgagee;
(iii) before the commencement of any such work, such
plans and specifications shall be filed with and
approved by all governmental departments or
authorities having jurisdiction, and any public
utility company have an interest therein and all
appropriate permits issued, and all such work
shall be done subject to and in accordance with
the requirements of law and local regulations of
all governmental departments or authorities having
jurisdiction and of such public utility company;
and
(iv) before the commencement of any such work the
Mortgagor shall pay the amount of any increase in
premiums on insurance policies provided for under
clause (a) of this Article 2 on account of
endorsements to be made thereon covering the risk
during the course of such work, and workers'
compensation insurance covering all persons
employed in connection with the work and with
respect to whom death or bodily injury claims
could be asserted against the Mortgagee or the
Premises shall be maintained by the Mortgagor at
its sole cost and expense (but reimbursable to the
Mortgagor, upon completion of such restoration,
out of insurance proceeds as provided above) at
all times when any such work is in progress.
3. That no building or other property now or
hereafter covered by the lien of this Mortgage shall be removed,
demolished or materially altered without the prior written
consent of the Mortgagee, except that the Mortgagor shall have
the right, without such consent, to remove and dispose of, free
from the lien of this Mortgage, such Building Equipment as from
time to time may become worn out or obsolete, provided that
either (a) simultaneously with or prior to such removal, any such
equipment shall be replaced with other equipment of a value at
least equal to that of the replaced equipment and free from any
Security Agreement, and by such removal and replacement the
Mortgagor shall be deemed to have subjected such Building
Equipment to the lien of this Mortgage, or (b) any net cash
proceeds received from such disposition shall be paid over
promptly to the Mortgagee to be applied to the last installments
due on the indebtedness hereby, secured, without any charge for
prepayment.
4. That in the event of any default in the
performance of any of the Mortgagor's covenants or agreements
herein beyond the expiration of applicable notice and cure
periods, if any, the Mortgagee may, at the option of the
Mortgagee following notice to the Mortgagor, pay or perform the
same and the amount or cost thereof, with interest at a rate per
annum (the "Default Rate") equal to the lesser of (a) eighteen
(18%) percent per annum or (b) the maximum rate permitted by law
to be charged to the Mortgagor, shall immediately be due from the
Mortgagor to the Mortgagee and secured by this Mortgage. If the
principal sum of the Note shall not be paid at its maturity, or
on its acceleration pursuant to Article 18 hereof, interest
thereon shall thereafter be computed and paid at the Default
Rate.
5. (a) That the Mortgagor will pay all taxes,
assessments, water rates, sewer rents and other charges now or
hereafter levied against the Premises or any part thereof, and
also any and all license fees or similar charges which may be
imposed by the municipality in which the Premises are situated
for the use of walks, chutes, areas and other space beyond the
lot line and on or abutting the public sidewalks and in front of
or adjoining the Premises, together with any penalties or
interest on any of the foregoing, and in default thereof the
Mortgagee may pay the same and the Mortgagor will repay the same
with interest thereon at the Default Rate and the same shall be
added to the indebtedness secured hereby and be secured by this
Mortgage; that upon request of the Mortgagee, the Mortgagor will
exhibit to the Mortgagee receipts for the payment of all items
specified in this Article 5 fifteen (15) days prior to the date
when the same shall become delinquent.
(b) The Mortgagor shall deposit with the
Mortgagee, on the first day of each and every month,
simultaneously with the payment of the monthly installments of
principal and/or interest then due under the Note, a sum equal to
one-twelfth (1/12) of the annual real estate taxes, assessments,
water rates, sewer rents and other charges specified in this
Article 5 (collectively, "Taxes") plus, at the Mortgagee's option
to be exercised by twenty (20) days written notice to the
Mortgagor, one-twelfth (1/12) of the premiums required to keep in
force for one year the insurance specified in Article 2 hereof.
The Mortgagor shall also deposit with the Mortgagee, if such
deposits shall be so required, at least thirty (30) days prior to
the due date of each installment of Taxes and each insurance
premium, such additional amount as may be reasonably determined
by the Mortgagee in order to provide the Mortgagee with funds
sufficient to pay such installment or premium. It is the
intention of the parties that, if such deposits shall be so
required, the Mortgagor shall deposit with the Mortgagee the
necessary funds so that the Mortgagee, at all times until the
full payment and satisfaction of this Mortgage, shall have on
hand sufficient deposits covering the accrued amounts of Taxes
and insurance premiums. If permitted by law, such funds shall
bear no interest and may be commingled with other funds of the
Mortgagee. The Mortgagee shall have no obligation to use such
funds to pay an installment of Taxes prior to the last day on
which payment thereof may be made without penalty or interest or
as required by applicable law, whichever may be earlier, or to
pay an insurance premium prior to the due date thereof. If the
whole of the principal sum and interest secured hereby shall be
declared due and payable by the Mortgagee pursuant to Article 18
hereof, all such deposits may, at the option of the Mortgagee, be
applied in reduction of the principal sum and interest secured
hereby, as the Mortgagee shall elect. Upon an assignment of this
Mortgage, the Mortgagee shall have the right to pay over the
balance of such deposits in its possession to the assignee and
the Mortgagee shall thereupon be completely released from all
liability with respect to such deposits and the Mortgagor or
owner of the Premises shall look solely to the assignee or
transferee in reference thereto. This provision shall apply to
every transfer of such deposits to a new assignee. Upon full
payment and satisfaction of this Mortgage or at any time, at the
election of the Mortgagee, the balance of the deposits in its
possession shall be paid over to the record owner of the Premises
and no other party shall have any right or claim thereto in any
event. The Mortgagor agrees, at the Mortgagee's request, to make
the aforesaid deposits with such services or financial
institution as the Mortgagee shall from time to time designate.
6. That the holder of this Mortgage, in any action to
foreclose it, shall be entitled to the appointment of a receiver,
without bond or notice to the Mortgagor.
7. That the Mortgagor, within five (5) days upon
request in person or within ten (10) 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.
8. That all notices or other communications required
or permitted to be given pursuant to the provisions of this
Mortgage shall be in writing and shall be deemed given only if
mailed by United States registered mail, postage prepaid,
addressed as follows: (i) to the Mortgagor, ast the address
first set forth above, with a copy to Fugit, Hubbard, Woolley,
Bloom & Mersky, 1900 Lincoln Plaza, 500 North Akard, Dallas TX
75201 Attention: Charles Mersky, Esq., and (ii) to the
Mortgagee, at the address first set forth above, Attention:
Corporate Secretary, with copies to Martin Kimelman, Esq., 645
Fifth Avenue, New York, New York and to Mudge Rose Guthrie
Alexander & Ferdon, 425 Park Avenue, New York, New York 10022
Attention: Jeffrey Hirsch, Esq.; or to such other address as
each party may hereafter designate by notice delivered in
accordance herewith. All such notices shall be deemed given
three (3) business days after delivery to the United States
Postal Registry clerk.
9. That the Mortgagor warrants the title to the
Premises.
10. That in case of a foreclosure sale, the Premises,
or so much thereof as may be affected by this Mortgage, may be
sold in one parcel.
11. That if any action or proceeding be commenced
(including an action to foreclose this Mortgage or to collect the
debt secured hereby), in which the Mortgagee becomes a party or
participates, by reason of being the holder of this Mortgage or
the debt secured hereby, all sums paid by the Mortgagee for the
expense of so becoming a party or participating (including
reasonable
attorneys' fees on the trial and appellate levels, paralegal fees
and disbursements) shall on notice and demand be paid by the
Mortgagor, together with interest thereon at the Default Rate,
and shall be a lien on the Premises, prior to any right or title
to, interest in, or claim upon, the Premises subordinate to the
lien of this Mortgage, and shall be deemed to be secured by this
Mortgage, and shall be deemed to be secured by this Mortgage and
evidenced by the Note. In any action or proceeding to foreclose
this Mortgage, or if the Note is not paid in accordance with its
term and is placed in the hands of an attorney for collection,
the Mortgagee shall thereupon become entitled to, and the
Mortgagor or any subsequent owner of the Premises shall pay, the
reasonable attorneys' fees and disbursements of the Mortgagee
(including reasonable attorneys' fees and disbursements on the
trial and appellate levels and paralegal fees) in connection with
such action, which sums shall be added to and collected in such
action or proceeding in addition to and apart from the usual
costs and allowances to which the Mortgagee may be entitled or
awarded under any law or statute applicable to such action or
proceeding. The provisions of this Article 11, in addition to
any other rights of the Mortgagee hereunder, include the right of
the Mortgagee to assess, tax and recover all disbursements,
allowances and costs provided by law.
12. That the Mortgagor will maintain the Premises and
Building Equipment in good condition and repair, will not commit
or suffer any waste thereof or the conduct of any nuisance or
unlawful occupation or business on, or use of, the Premises, and
will comply with, or cause to be complied with, all statutes,
ordinances and requirements of any governmental authority
relating to the Premises; that the Mortgagor will promptly
repair, restore, replace or rebuild any part of the Premises or
Building Equipment now or hereafter subject to the lien of this
Mortgage which may be damaged or destroyed by any casualty
whatsoever or which may be affected by any proceeding of the
character referred to in Article 13; and that the Mortgagor will
not initiate, join in, or consent to any change in any private
restrictive covenant, zoning ordinance, or other public or
private restrictions, limiting or defining the uses which may be
made of the Premises or any part thereof.
13. (a) That notwithstanding any taking by eminent
domain or other governmental action causing injury to, or
decrease in value of, the Premises and creating a right to
compensation therefor including, without limitation, the change
of the grade of any street, the Mortgagor shall continue to pay
interest, computed at the rate reserved in the Note, on the
entire unpaid principal amount thereof, until the award or
compensation for such taking or other action (the "Award") shall
have been actually received by the Mortgagee and the Award need
not be applied by the Mortgagee in reduction of principal but may
be applied in such proportions and priority as the Mortgagee, in
the Mortgagee's sole discretion, may elect, to the payment of
principal, interest or other such sums secured by this Mortgage
and/or to payment to the Mortgagor, on such terms as the
Mortgagee may specify, for the sole purpose of altering,
restoring or rebuilding any part of the Premises which may have
been altered, damaged or destroyed as a result of any such taking
or other action; and that if, prior to the receipt by the
Mortgagee of the Award, the Premises shall have been sold on
foreclosure of this Mortgage, the Mortgage shall have the right
to receive the Award to the extent of any deficiency found to be
due upon such sale, with legal interest thereon, whether or not a
deficiency judgment on this Mortgage shall or may have been
sought or recovered or denied, together with reasonable counsel
and paralegal fees (on the trial and appellate levels) and the
costs and disbursements incurred by the Mortgagee in connection
with the collection of the Award.
(b) That notwithstanding the foregoing, the
Mortgage shall allow the use of the proceeds of the Award for the
restoration of the improvements provided that (i) the cost of
such restoration is less than $500,000, (ii) no default then
exists hereunder or under the Note or any of the other Loan
Documents (as hereinafter defined), (iii) the Mortgagor shall
forthwith proceed with the repair and restoration of the Premises
as nearly as possible to the condition same were in immediately
prior to such taking, (iv) the proceeds of the Award shall be
disbursed and such restoration performed in accordance with
provisions of Article 2 hereof, (v) the Mortgagee shall be
satisfied that upon completion of such repair and restoration the
gross cash flow and net cash flow of the Premises shall be
restored to a level at least equal to that which existed
immediately prior to the date of the taking, and (vi) the
Mortgagee shall be satisfied, in its sole and absolute
discretion, that the Premises can be completed to the condition
same were in immediately prior to such taking by a date not later
than three (3) months prior to the Maturity Date.
14. That the Mortgagee and any persons authorized by
the Mortgagee shall have the right to enter and inspect the
Premises at all reasonable times; and that if, at any time after
default beyond any applicable grace period by the Mortgagor in
the performance of any of the terms, covenants or provisions of
this Mortgage or of the Note, the management or maintenance of
the Premises shall be determined by the Mortgagee to be
unsatisfactory, the Mortgagor shall employ, for the duration of
such default, as managing agent of the Premises, such person or
firm as from time to time shall be approved by the Mortgagee.
Notwithstanding the foregoing, the 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 the Mortgagor or any person in possession
holding under the Mortgagor.
15. That the Mortgagor shall furnish to the Mortgagee:
(i) within fifteen (15) days of the close of each calendar
quarter, a statement of the income and expense of the Premises
for such quarter prepared on a cash basis in accordance with
sound accounting principles, consistently applied, and certified
by the general partner or an officer of the Mortgagor; (ii)
within ninety (90) days of the close of each calendar year (other
than the 1989 calendar year), such a statement for such year
prepared and reported upon by a certified public accountant
satisfactory to the Mortgagee, who shall express his favorable
opinion thereon subject only to customary qualifications
reasonably acceptable to Mortgagee; (iii) as promptly as
reasonably possible, such interim financial or other information
with respect to the operation of the Premises as the Mortgagee
may reasonably request; and (iv) within fifteen (15) days of the
close of each calendar month, a current rent roll showing the
names of all tenants, space occupied by each tenant, rent paid by
each tenant, additional rents paid by each tenant, lease
security, if any, lease or occupancy expiration dates, options
for renewal, rental during renewal terms, cancellation provisions
and other relevant information. If the Mortgagor shall have
leased all or substantially all of the Premises to another, such
statements shall cover the earnings and expenses in the latest
calendar year of the lessee under such lease. In the case of
such a lease, if the lessee shall be an affiliate of the
Mortgagor, the Mortgagor will also furnish to the Mortgagee the
lessee's balance sheet as of the end of the lessee's fiscal year
and the lessee's statement of income and surplus for such fiscal
year, all in reasonable detail and stating in comparative from
the figures as of the end of and for the previous fiscal year,
and prepared, audited and reported upon by a certified public
accountant, satisfactory to Mortgagor, or, if permitted by the
Mortgagee, verified by an authorized financial officer of the
lessee.
16. That the Mortgagor hereby assigns to the
Mortgagee, as further security for the payment of the
indebtedness secured hereby, the rents, issues and profits of the
Premises, together with all leases and other documents evidencing
such rents, issues and profits now or hereafter in effect and any
and all deposits held as security under such leases, and shall,
upon demand, deliver to the Mortgagee an executed counterpart of
each such lease or other document. Nothing contained in the
foregoing sentence shall be construed to bind the Mortgagee to
the performance of any of the covenants, conditions or provisions
contained in any such lease or other document or otherwise to
impose any obligation on the Mortgagee (including, without
limitation, any liability under the covenant of quiet, enjoyment
contained in any lease in the event that any tenant shall have
been joined as a party defendant in any action to foreclose this
Mortgage and shall have been barred and foreclosed thereby of all
right, title and interest and equity of redemption in the
Premises), except that the Mortgagee shall be accountable for any
money actually received pursuant to such assignment. The
Mortgagor hereby further grants to the Mortgagee the right (i) to
enter upon and take possession of the Premises for the purpose of
collecting such rents, issues and profits, (ii) to dispossess by
the usual summary proceedings any tenant defaulting in the
payment thereof to the Mortgagee, (iii) to let the Premises, or
any part thereof, and (iv) to apply such rents, issues and
profits, after payment of all necessary charges and expenses, on
account of the indebtedness secured hereby. Such assignment and
grant shall continue in effect until the indebtedness secured by
this Mortgage is paid, the execution of this Mortgage
constituting and evidencing the irrevocable consent of the
Mortgagor to the entry upon and taking possession of the Premises
by the Mortgagee pursuant to such grant, whether foreclosure has
been instituted or not and without applying for a receiver. The
Mortgagee, however, hereby waives the right to enter upon and
take possession of the Premises for the purpose of collecting
such rents, issues and profits, and the Mortgagor is hereby
granted a license to collect and receive the same until the
occurrence of a default by the Mortgagor under any of the
covenants, conditions or agreements contained in this Mortgage
that remains unremedied following the expiration all applicable
notice and cure periods, if any. The Mortgagor agrees to use
such rents, issues and profits in payment of principal and
interest becoming due on this Mortgage and in payment of taxes,
assessments, water rates, sewer rents and carrying charges
becoming due against the Premises. Such license of the Mortgagor
to collect and receive such rents, issues and profits may be
revoked by the Mortgagee upon any such default by the Mortgagor
that remains unremedied following the expiration of all
applicable notice and cure periods, if any, by giving not less
than five (5) days written notice of such revocation. In the
event of any default under this Mortgage that remains unremedied
following the expiration of all applicable notice and cure
periods, if any, the Mortgagor will pay monthly in advance to the
Mortgagee, on its entry into possession pursuant to the foregoing
grant, or to any receiver appointed to collect such rents, issues
and profits, the fair and reasonable rental value for the use and
occupation of the Premises or of such part thereof as may be in
the possession of the Mortgagor, and upon default in any such
payment will vacate and surrender the possession of the Premises
or such part thereof, as the case may be, to the Mortgagee or to
such receiver, and, in default thereof, may be evicted by summary
proceedings.
17. (a) That the Mortgagor will not enter into any
lease for all or any portion of the Premises without the prior
written consent of the Mortgagee which consent shall not be
unreasonably withheld or delayed. Without limiting the
generality of the foregoing, provided the Mortgagee has
theretofore approved the master form of lease (the "Master Form
of Lease") to be employed by the Mortgagor at the Premises, the
approval of the Mortgagee shall not be required for the making by
the Mortgagor of new leases for all or any portion of the
Premises comprised solely of the Master Form of Lease without
substantial or material modification thereto so long as such
leases provide for fixed minimum rentals plus escalations and
such other terms and conditions as are then customary with
respect to the leasing of comparable space to comparable tenants
in similar or equivalent locations in St. Petersburg, Florida
("Fair Market Rental") as determined by the Mortgagee in its
reasonable discretion; provided however, the Mortgagor shall have
the right to grant rent concessions of up to two (2) weeks for
leases with terms of at least six (6) months and of up to one (1)
month for leases with terms of at least one (1) year, provided
the fixed minimum rent payable under such leases is at Fair
Metket Rental and such leases are on the Master Form of Lease.
(b) That the Mortgagor has no right or power, as
against the Mortgagee without its consent, to cancel except in
the ordinary course of business), abridge or otherwise modify the
leases or sub-leases of the Premises or any of the terms,
provisions or covenants thereof or to accept prepayments of
installments of rent to become due thereunder (in excess of one
months' rent in advance) and the Mortgagor shall not do so
without such consent, which consent, in the case of a
modification, amendment, alteration, extension or renewal only,
shall not be unreasonably withheld or delayed provided, among
other things, that the lease, as modified, amended, altered,
extended or renewed, is without substantial or material
modifications to the Master Form of Lease and provides for Fair
Market Rental. Upon notice and demand, the Mortgagor will, from
time to time, execute, acknowledge and deliver or cause to be
executed, acknowledged and delivered to the Mortgagee, in form
satisfactory to the Mortgagee, one or more separate assignments
(confirmatory of the general assignment provided in Article 16
hereof) of the lessor's interest in any lease or sublease now or
hereafter affecting the whole or any part of the Premises,
restricting the Mortgagor's right or power, as against the
Mortgagee, without its consent, to cancel, abridge or otherwise
modify, or accept prepayments of installments of rent to become
due under, any lease or sublease hereafter in existence except as
otherwise permitted by this Article 17. The Mortgagor shall pay
to the Mortgagee on demand any reasonable expenses incurred by
the Mortgagee in connection with the preparation and recording of
any such assignment or agreement. With respect to any lease
referred to in this Article 17 or which at any time is covered by
any such agreement or any such assignment of lessor's interest in
such lease, the Mortgagor will (i) fulfill or perform each and
every condition and covenant of the same to be fulfilled or
performed by the lessor thereunder and (ii) enforce, short of
termination thereof, the performance or observance of each and
every covenant and condition thereof by the lessee thereunder to
be performed or observed, except to the extent that the Mortgagor
reasonably determines that in the ordinary course of business
such enforcement is not required.
18. That the whole of the principal sum and the
interest shall become due at the option of the Mortgagee: (a) if
the Mortgagor fails to pay any installment of principal or
interest for five (5) days after the same first becomes due and
payable; or (b) if the Mortgagor fails to pay when due any
payment of any tax, water rate, sewer rent, assessment or vault
license fee for thirty (30) days after the same first becomes due
and payable, it being understood and agreed that an assessment
which has been made payable in installments at the application of
the Mortgagor or any lessee of the Premises shall, nevertheless,
for the purposes of this clause, be deemed due and payable in its
entirety on the date the first installment becomes due or payable
or a lien; or if the Mortgagor fails to furnish the Mortgagee
with receipted tax bills or other proof of payment of the
aforesaid items by no later than the dates on which such items
must be paid so as not to constitute a default hereunder; or (c)
after default after five (5) days notice, either in assigning and
delivering the policies of insurance herein described or referred
to, or in reimbursing the Mortgagee for premiums paid on such
insurance, as hereinbefore provided or in keeping in force such
insurance; or (d) upon the actual or threatened waste, removal or
demolition of any building or other property on the Premises,
except as permitted by Article 3; or (e) upon assignment by the
Mortgagor of the whole or any part of the rent, issues or profits
arising from the Premises to any person without the written
consent of the Mortgages or if, with out such consent, the
Mortgagor shall further encumber the Premises or any portion
thereof for debt (including, without limitation, secured
transactions under the Uniform Commercial Code of the State of
Florida); or (f) if the buildings on the Premises are not
maintained in reasonably good repair; or (g) after failure to
comply with any requirement, order or notice of violation of law
of ordinance issued by any governmental department claiming
jurisdiction over the Premises within three (3) months from the
issuance thereof or, if the Mortgagee, in its reasonable judgment
shall determine that such violation is of such a nature that it
cannot reasonably be complied with within three (3) months of the
issuance thereof, the Mortgagor fails to promptly commence and
exercise due diligence and continuous effort to comply with such
violation; or (h) if, on application of the Mortgagee, two (2) or
more fire insurance companies lawfully doing business in the
State of Florida refuse to issue policies insuring the buildings
on the Premises; or (i) after thirty (30) days notice to the
Mortgagor in the event of the passage of any law deducting from
the value of land for the purposes of taxation any lien thereon,
or changing in any way the taxation of mortgages or debts secured
thereby for state or local purposes, or the manner of collecting
such taxes and imposing a tax, either directly or indirectly , on
this Mortgage or the Note; or (j) if the Mortgagor shall fail to
make payment of any other sums required to be paid hereunder
within the period required by specific provision of this
Mortgage, or, if no such period is so provided, by not later than
ten (10) days after written notice; or (k) if the Mortgagor shall
fail to comply with any other covenants or conditions contained
in this Mortgage and, except with respect to failure to pay
money, such failure shall continue unremedied for the period
within which performance is required to be made by specific
provision of this Mortgage, or, if no such period is so provided,
for a period of thirty (30) days after notice thereof shall have
been given by the Mortgagee or, with respect to any such default
which, in the sole and exclusive judgment of the Mortgagee, shall
be of such a nature that it cannot reasonably be cured or
remedied within thirty (30 days), if the Mortgagor shall not
promptly commence and exercise due diligence and continuous
effort to remedy the same; or (l) id the Mortgagor shall: (i)
admit in writing its inability to pay its debts generally as they
become due; (ii) file a petition in bankruptcy or a petition to
take advantage of any insolvency act; (iii) make an assignment
for the benefit of creditors; (iv) consent to, or acquiesce in,
the appointment of a receiver, liquidator or trustee of itself or
of the whole or any substantial part of its properties or assets;
(v) file a petition or answer seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution,
or similar relief under the federal bankruptcy laws or any other
applicable law; or (m) (i) if, without the Mortgagor's consent or
acquiescence, a court of competent jurisdiction shall enter an
order, judgment or decree appointing a receiver, liquidator, or
trustee of the Mortgagor, or of the whole or any substantial part
of the property or assets of the Mortgagor and such order,
judgment or decree shall remain unvacated, or not set aside, or
unstayed for sixty (60) days, or (ii) if a petition shall be
filed against it seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
relief under the federal bankruptcy laws of any other applicable
law and such petition shall remain undismissed for sixty (60)
days, or (iii) if under the provisions of any other law for the
relief or aid of debtors, any court of competent jurisdiction
shall assume custody or control of the Mortgagor or of the whole
or any substantial part of its property or assets, and such
custody or control shall remain unterminated or unstayed for
sixty (60) days; or (n) if judgment for Fifty Thousand
($50,000.00) Dollars or more shall be rendered against the
Mortgagor by a court of competent jurisdiction which shall not be
discharged or bonded pending appeal within thirty (30) days from
the entry thereof; or (o) if any representation, warranty or
statement contained in any writing delivered to the Mortgagee by
Mortgagor or any guarantor of the obligations of the Mortgagor
hereunder simultaneously with the execution and delivery hereof,
shall prove to be incorrect in any material respect or in the
event of an uncured default by the guarantor under any guaranty
of the obligations of the Mortgagor delivered to the Mortgagee
simultaneously with the execution hereof; or (p) if, without the
prior consent of the Mortgagee (i) the Premises, or any part
thereof, shall be sold or otherwise transferred by the Mortgagor
or further encumbered for debt, or (ii) if the Mortgagor or any
entity comprising the Mortgagor shall be a corporation, a
controlling amount of its (or their) voting stock shall be sold
or otherwise transferred or pledged, hypothecated or otherwise
transferred as security for debt, or if at any time (A) there
shall be an increase in the number of issued and/or outstanding
shares of the voting stock of the Mortgagor or any entity
comprising the Mortgagor and/or (B) there shall be created one or
more additional classes of voting stock of the Mortgagor or any
entity comprising the Mortgagor, however accomplished and whether
in a single transaction or in a series of related or unrelated
transactions, with the result that in either event a controlling
amount of the voting stock of the Mortgagor or any entity
comprising the Mortgagor shall be sold or otherwise transferred,
or pledged, hypothecated or otherwise transferred as security for
debt, or (iii) if the Mortgagor shall be a partnership, joint
venture, syndicate or other group, all or any portion of the
interest of any general partner or member thereof or all or any
portion of the interest of any general partner or member in such
general partner or member of Mortgagor shall be sold or otherwise
transferred or pledged, hypothecated or otherwise transferred as
security for debt; or (q) at the option of the Mortgagee, if the
Mortgagor shall fail beyond any applicable notice and grace
period to comply with any term or provision of any document,
agreement or instrument executed by the Mortgagor with or in
favor of the Mortgagee and delivered to the Mortgagee in
connection with the execution hereof including, without
limitation, the Note (such documents, agreements and instruments,
together with the Note and this Mortgage are hereinafter,
collectively, the "Loan Documents").
19. That this Mortgage is given to secure not only the
existing indebtedness of FIFTEEN MILLION SEVEN HUNDRED FIFTY
THOUSAND and 00/100 ($15,750,000) DOLLARS of the Mortgagor to the
Mortgagee evidenced by the Note and secured hereby, but also such
future advances up to an additional TWENTY MILLION
($20,000,000.00) DOLLARS made within twenty (20) years from date
hereof, plus interest thereon, and any disbursements made by the
Mortgagee for the payment of taxes, insurance or other liens on
the property encumbered by this Mortgage, with interest on such
disbursements, which advances shall be secured hereby to the same
extent as if such future advances were made this date. The total
amount of indebtedness secured hereby may increase or decrease
from time to time. The provisions of this Article shall not be
construed to imply any obligation on Mortgagee to make any
further advances, it being the intention of the parties that any
further advances shall be solely at the discretion and option
than any further advances shall be solely at the discretion and
option of the Mortgagee. Any reference to "Note" in this
Mortgage shall be construed to reference any future advances made
pursuant to this Article.
20. That 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 Premises, or by
any other person whose interest in the Premises might be
prejudiced in the event of a failure to make such payment, or by
any stockholder, officer or director of a corporation which at
any time may be liable for such payment or may own or have such
an interest in the Premises, shall be deemed, as between the
Mortgagee and all persons who at any time may be liable as
aforesaid or may own the Premises, to have ben made on behalf of
all such persons.
21. That any failure by the Mortgagee to insist upon
the strict performance by the Mortgagor of any of the terms and
provisions hereof shall not be deemed to be a waiver of any of
the terms and provisions hereof, and the Mortgagee,
notwithstanding any such failure, shall have the right thereafter
to insist upon the strict performance by the Mortgagor of any and
all of the terms and provisions of this Mortgage to be performed
by the Mortgagor; that neither the Mortgagor nor any other person
now or hereafter obligated for the payment of the whole or any
part of the sums now or hereafter secured by this Mortgage shall
be relieved of such obligation by reason of this Mortgage shall
be relieved of such obligation by reason of the failure of the
Mortgagee to comply with any request of the Mortgagor, or any
other person so obligated, to take action to foreclose this
Mortgage or otherwise enforce any of the provisions of this
Mortgage or any obligations secured by this Mortgage, or by
reason of the release, regardless of consideration, of the whole
or any part of the security held for the indebtedness secured by
this Mortgage, or by reason of any agreement or stipulation
between any subsequent owner or owners of the Premises and the
Mortgagee extending the time of payment or modifying the terms of
the Note or this Mortgage without first having obtained the
consent of the Mortgagor or such other person, and in the latter
event, the Mortgagor and all such other persons shall continue
liable to make such payments according to the terms of any such
agreement of extension or modification unless expressly released
and discharged in writing by the Mortgagee; that, regardless of
consideration and without the necessity for any notice to or
consent by the holder of any subordinate lien on the Premises,
the Mortgagee may release the obligation of anyone at any time
liable for any of the indebtedness secured by this Mortgage or
any apart of the security held for the indebtedness without, as
to the security or the remainder thereof, in anywise impairing or
affecting the lien hereof or the priority thereof over any
subordinate encumbrance; and that the Mortgagee may resort for
the payment of the indebtedness secured hereby to any other
security therefor held by the Mortgagee in such order and manner
as the Mortgagee may elect.
22. That if any time the United States of America, any
state thereof or any governmental subdivisions of such state,
having jurisdiction, shall require internal revenue stamps to be
affixed to the Note, or other tax paid on or in connection
therewith, the Mortgagor will pay the same with any interest or
penalties imposed in connection therewith.
23. That this Mortgage shall be deemed a Security
Agreement as defined in the Uniform Commercial Code of the State
of Florida and the remedies for any violation of the covenants,
terms and condition of the agreements herein contained shall be
(i) as prescribed herein, (ii) by general law, or (iii) as to
such part of the security which is also reflected in such
Financing Statement, by the specific statutory consequences now
or hereafter enacted and specified in such Uniform Commercial
Code, all at the Mortgagee's sole election. The filing of such
Uniform Commercial Code, all at the Mortgagee's sole election.
The filing of such a Financing Statement in the records normally
having to do with personal property shall never be construed as
in any way derogating rom or impairing this declaration and
hereby stated intention of the parties hereto, that all items of
Building Equipment and other property used in connection with the
production of income from the Premises (furniture only excepted)
or adapted for use therein and/or which is described or reflected
in this Mortgage are, and at all times and for all purposes and
in all proceedings, both legal and equitable, shall be, regarded
as part of the real estate irrespective of whether or not (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 Mortgagee, or
(iii) any such item is refereed 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, (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 or
occupancy of the Premises, whether pursuant to a lease or
otherwise, shall never be construed as in way altering any of the
rights of the Mortgagee as determined by this instrument or
impugning the priority or the Mortgagee as determined by this
instrument or impugning the priority of the Mortgagee's lien
granted hereby or by any other recorded document, tu such mention
in the Financing Statement is declared to be for the protection
of the Mortgagee in the event any court or judge shall at any
time hold with respect to (1), (2) or (3) that notice of the
Mortgagee'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 Uniform Commercial Code records.
Pursuant to the Uniform Commercial Code of the State of Florida,
the Mortgagor hereby authorizes the Mortgagee, without the
signature of the Mortgagor, to execute and file Financing
Statements if the Mortgagee shall determine that such are
necessary or advisable in order to perfect its security interest
in any fixtures, chattels or articles of personal property
covered by this Mortgage, and shall pay to the Mortgagee on
demand any expenses incurred by the Mortgagee in connection with
the preparation, execution and filing of such statements and any
continuation statements that may be filed by the Mortgagee.
24. That the Mortgage will not any time insist upon,
or plead. or in any manner whatever claim or take any benefit or
advantage of any stay of extension or moratorium law, any
exemption from execution or sale of the Premises or any part
hereof, wherever enacted, now or at any time hereafter in force,
which may affect the covenants and terms of performance of this
Mortgage, nor claim, take or insist upon any benefit or advantage
of any law now or hereafter in force providing for the valuation
or appraisal of the Premises, or any part thereof, prior to any
sale or sales thereof which may be made pursuant to any provision
herein, or pursuant to the decree, judgment or order of any court
of competent jurisdiction; nor, after any such sale or sales,
claim or exercise any right under any statute heretofore and the
Mortgagor hereby expressly waives all benefits or advantage of
any such law or laws and covenants not to hinder, delay or impede
the execution of any power herein granted or delegated to the
Mortgagee, but to suffer and permit the execution of every power
as thought no such law or laws had been made or enacted. The
Mortgagor, for itself and all who may claim under it, waives to
the extent that it fully may, all right to have the Premises
marshalled upon any foreclosure hereof.
25. That if the Mortgagor consists of more than one
party, such parties shall be jointly and severally liable under
any and all obligations, covenants and agreements of the
Mortgagor contained herein.
26. That the rights of the Mortgagee arising under the
clauses and covenants contained in this Mortgage shall be
separate, distinct and cumulative and none of them shall be in
exclusion of the others; and that no act of the Mortgagee shall
be construed as an election to proceed under anyone provision
herein to the exclusion of any other provision, anything herein
or otherwise to the contrary notwithstanding.
27. That the Mortgagor: (i) shall keep this Mortgage
a valid first mortgage lien upon the Premises; (ii) shall not at
any time create or allow to accrue or exist any debt, lien or
charge which would be prior to or on a parity with the lien of
this Mortgage upon any part of the Premises; and (iii) shall not
cause or permit the lien of this Mortgage to be diminished or
impaired in any way.
28. That, notwithstanding any grace period set forth
herein, the Mortgagee may collect a late charge of six cents of
each dollar of each installment of principal and/or interest
payable under the Note which is not paid on its due date, in
order to cover the extra expense involved in handling delinquent
payments, which late charge shall be due and payable not later
than the due date of the next payment to be made under the Note
and which late charge shall be secured by this Mortgage.
29. That the execution of this Mortgage has been duly
authorized by the board of directors of the Mortgagor, if a
corporation.
30. That this Mortgage shall be construed, enforced
and governed by the laws of the State of Florida.
31. That whatever used in this Mortgage, unless the
context clearly indicated a contrary intent or unless otherwise
specifically provided herein, the word "lease" shall mean
"tenancy, subtenancy, lease or sublease", the word "Mortgagor"
shall mean "Mortgagor and any subsequent owner or owners of the
Premises", the word "Mortgagee" shall mean "Mortgagee or any
subsequent holder or holders of this Mortgage", the word "person"
shall mean "an individual, corporation, partnership or
unincorporated association" and the word "Premises" shall include
the real estate hereinbefore described, together with all
improvements now or hereafter located thereon, Building
Equipment, condemnation awards and any and all other rights or
property interests at any time made subject to the lien of this
Mortgage by the terms hereof.
32. That the Mortgagor shall pay all fees and charges
incurred by the Mortgagee in the procuring, making and
enforcement of the loan evidenced by the Note and secured by this
Mortgage, including, without limitation, the reasonable fees and
disbursements of the Mortgagee's attorneys and paralegal (on the
trial and appellate nation of title, title insurance premiums,
surveys and mortgage recording, documentary, transfer or other
similar taxes and revenue stamps.
33. That the lien of this Mortgage will automatically
attach, without further act, to all after acquired property of
Mortgagor of any nature whatsoever attached to, located in, on,
or used in the operation of the Premises or any part therefor,
and Mortgagor covenants and warrants that it will have good and
absolute title to all of the aforesaid after acquired property
free of any lien or encumbrance unless otherwise stated.
34. That the Mortgagee shall be permitted to purchase
the Premises at a foreclosure sale. If the Mortgagee purchases
the Premises pursuant to a foreclosure under this Mortgage, or
accepts an assignment of the Premises in lieu of the foreclosure,
the Mortgagor hereby authorizes the Mortgagee to withhold the
amount of tax, if any, required to be withheld under Section 1445
of the Internal Revenue Code of 1954, as amended (or any
successor provision thereto), out of any sums payable to the
Mortgagor who are entitled to be paid out of any foreclosure or
assignment proceeds, as if the Mortgagor were a foreign person,
unless the Mortgagor certifies its nonforeign status at the time
of such foreclosure sale or assignment, as the case may be, by
executing and delivering to the Mortgagee a certificate
satisfactory to the Mortgagee.
35. That this Mortgage may not be changed or
terminated orally; and the covenants contained in this Mortgage
shall run with the land and bind the Mortgagor, the heirs,
personal representatives, successors and assigns of the Mortgagor
and all subsequent encumbrancer, tenants and subtenants of the
Premises, and shall enure to the benefit of the Mortgagee, the
successors and assigns of the Mortgagee. The word "Mortgagor"
shall be construed as if it read "Mortgagors" whenever the sense
of this Mortgage so requires.
36. That in the event that any provision of this
Mortgage or the application thereof to Mortgagor or any
circumstance in any jurisdiction governing this Mortgage shall,
to any extent, be invalid or unenforceable under any applicable
statute, regulation, or rule of law, and such provision shall be
deemed inoperative to extent that it may conflict therewith and
shall be deemed modified to conform to such statute, regulation
or rule of law, and the remainder of this Mortgage and the
application of any such invalid or unenforceable provision to
parties, jurisdictions, or circumstances other than to whom or to
which it is held invalid or unenforceable, shall not be affected
thereby nor shall same affect the validity or enforceability of
any other provision of this Mortgage.
37. That the abstract of title covering the Premises
shall belong to and remain in the possession of the Mortgagee
during the lien of this Mortgage.
38. That the Mortgagor represents and warrants that
the Premises are free of all hazardous substances including,
without limitation, all pollutants, dangerous substances, toxic
substances, hazardous wastes and hazardous substances as defined
or set forth in or pursuant to or covered by the Resource
Conservation and Recovery Act (42 U.S.C. Section 9601, et seq.)
("RCRA") as amended, the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Section 9601, et seq.)
("CERCLA") as amended, or any other federal, state or local
environmental law, ordinance, rule or regulation (a "Toxic Waste
Condition"), and that the Premises are in full compliance with
all other provisions of all federal, state and local
environmental and health law, ordinances, rules or regulations
including, without limitation, RCRA and CERCLA (collectively, the
"Environmental Laws"). If a violation of any Environmental Law
or a Toxic Waste Condition is discovered ast the Premises at any
time, the Mortgagor shall, at its sole cost and expense,
diligently remedy such violation or Toxic Waste Condition in full
to the Mortgagee's and its engineer's satisfaction within such
time period as shall be reasonable established by the Mortgagee.
In addition, if such violation or Toxic Waste Condition is
discovered prior to the payment in full of the principal balance
of the Note and all Base Interest (as defined in the Note)
thereon, upon demand by the Mortgagee, the Mortgagor shall
deposit security satisfactory to the Mortgagee in an amount
determined by the Mortgagee to be sufficient to ensure the
payment in full of the costs of remedying any violation of
Environmental Laws or Toxic Waste Condition from time to time
existing at the Premises (such deposit is referred to as a
"Cleanup Deposit"). The Mortgagor shall be and remain personally
liable for (i) the remedying of all violations of Environmental
Laws and the removal of all Toxic Waste Condition(s), and (iii)
complying with all Environmental Laws and all laws, rules and
regulations relating to the presence of Toxic Waste Conditions.
In addition, the Mortgagor shall indemnify and hold the Mortgagee
harmless from and against any and all liability, cost and
expenses including, without limitation, reasonable attorney's and
paralegal's fees and disbursements (on the trial and appellate
levels), arising out of, caused by or resulting from the alleged
violation of any Environmental Law or the alleged presence of a
Toxic Waste Condition, including, without limitation, any
personal injury claims. The obligations referred to in this
Article (collectively, the "Toxic Waste Obligations") shall
survive the payment in full of the principal indebtedness
evidenced by the Note and all Base Interest, and the satisfaction
or assignment of this Mortgage or foreclosure of this Mortgage or
delivery of a deed in lieu thereof.
39. That, notwithstanding anything to the contrary
contained herein, Mortgagor agrees that it shall not make, nor be
entitled to make, any claim for money damages against Mortgagee
based upon any claim or assertion that Mortgagee has unreasonably
withheld or delayed its consent and/or approval with respect to
any provision and/or approval is required and shall not be
unreasonable withheld ro delayed. Mortgagor's sole remedy in
such event shall be limited to and action or proceeding to
enforce any such provision pursuant to specific performance,
injunction or declaratory judgment.
40. That notwithstanding anything to the contrary
contained herein, the obligation of the Mortgagor to pay the
indebtedness evidenced by the Note and secured by this Mortgage
shall not be enforced by any action or proceeding wherein or
whereby damages or any money judgment (including any deficiency
judgment) shall be sought against the Mortgagor. Notwithstanding
the foregoing, the Mortgagor may be made a party defendant in a
foreclosure action against the Premises or any part thereof and
any judgment in such foreclosure action shall be enforceable
against the Mortgagor only to the extent of the interest of the
Mortgagor in the Premises and the income, rents, issues and
profits arising therefrom. Nothing contained above shall be
deemed to (a) limit the right of the Mortgagee to commence any
action or proceeding against the Mortgagor to the extent that
such action or proceeding does not seek damages or money judgment
(including a deficiency judgment) against the Mortgagor, (b)
affect or impair any guaranty delivered to the Mortgagee in
connection therewith or (c) affect or impair the Mortgagor's
Toxic Waste Obligations.
41. That the Mortgagor hereby indemnifies the firm of
Mudge rose Guthrie Alexander & Ferdon, 425 Park Avenue, New York,
New York 10022, and all of its attorneys, including the preparer
hereof, Peter R. Batten, Esq., from any and all loss, cost,
damage or claim, whether or not valid, including reasonable
attorneys' and paralegal's fees and disbursements (on the trial
and appellate levels), arising under or in any way connected with
Section 697.10 of Florida Statutes or any similar law. The
Mortgagor hereby verifies and confirms all factual information in
this Mortgage, including the accuracy and correctness of the
legal description set forth herein. In the event any errors are
found in this Mortgage or in the legal description, the Mortgagor
shall, at its own cost and expenses, promptly correct or cause to
be corrected subsequent to the date hereof any and all such
errors, with no further liability incurred by counsel for either
the Mortgagor or the Mortgagee. The Mortgagor shall promptly pay
or cause to be paid all damages, claims or any other costs
whatsoever arising out of any impairment of title due to or
caused by any inaccuracy or incorrectness of factual information
or inaccuracy or incorrectness of the legal description set forth
herein.
The covenants contained in this Mortgage shall run with
the land and bind the Mortgagor, the heirs, personal
representatives, successors and assigns of the Mortgagor and all
subsequent encumbrances, tenants and subtenants of the Premises
and shall inure to the benefit of the Mortgagee and the
successors and assigns of the Mortgagee.
42. THAT THE MORTGAGOR AND THE MORTGAGEE HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT WITHER
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT, UNDER OR IN CONNECTION WITH THIS MORTGAGE
OR THE NOTE, OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN INJUNCTION HEREWITH, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE MORTGAGEE ACCEPTING THIS MORTGAGEE
ACCEPTING THIS MORTGAGE AND EXTENDING CREDIT TO THE MORTGAGOR.
IN WITNESS WHEREOF, this Mortgage has been duly
executed and delivered by the Mortgagor as of the date first
above written.
WITNESS: PELICAN SOUND LIMITED PARTNERSHIP
By: HGC-Pelican Sound Limited
Partnership, general partner
_____________________________
_____________________________ By: _____________________________
DeLane Garner,
general partner
<PAGE>
SCHEDULE A
That Part of the SE 1/4 of Section 18, and that part of the NE
1/4 of Section 19, Township 30 South, Range 17 East, Pinellas
County, Florida, more particularly described as follows:
Beginning at a point on the north line of Section 19, Township 30
South, Range 17 East, Pinellas County, Florida, which point
is N. 89 deg. 54' to 50" W., 327.22 feet from the northeast
corner of said section; thence S. 00 deg. 09'57" W., 372.67 feet;
thence N. 81 deg. 08'18" E., 218.93 feet to an intersection with
a line which is 111.00 feet west of and parallel with the east
boundary of said section; thence S. 00 deg. 09'57" W., along said
line 652.38 feet to an intersection with the south line of the
north 3/4 of the north 1/2 of the northeast 1/4 of said lien
147.268 feet; thence N. 00 deg. 14'59" E., 790.91 feet to an
intersection with the south right-of-way line of the new
alignment of Gandy Boulevard (S.R. 600, a varying width right-of-
way); thence along said right-of-way by the following six (6)
courses:
43. N. 79 deg. 47'00" E., 258,08 feet;
44. N. 71 deg. 14'32" E., 102.50 feet;
45. N. 65 deg. 57'53" E., 293.84 feet, to a point on a
curve;
46. Along the arc of a curve to the right, concave to
the southeast, radius 2809.79 feet, delta 3 deg. 00'03", arc
147.16, chord 147.14, N. 70 deg. 10'36" E.;
47. Thence leaving said curve N. 71 deg. 40'31" E.,
299.68 feet;
48. N. 72 deg. 49'16" E., 225.58 feet;
Thence leaving said right-of-way S. 00 deg. 31'53" W., 210.57
feet to the abovementioned point of beginning.
and not known as;
Lot 1, Block 1, PELICAN SOUND, Plat Book 98 , Pages 3 and 4,
Public Records of Pinellas County, Florida.
EXHIBIT 10.12
November 30, 1993
Pelican Sound Apartments, Inc.
c/o 1231 Yonge Street
Suite 300
Toronto, Ontario
M4T 2T8
CANADA
Re: Agreement for Purchase and Sale of Pelican Sound
Apartments, 10200 Gandy Boulevard, St. Petersburg,
Florida (the "Project") between Decade Companies Income
Properties, A Limited Partnership ("Buyer") and Pelican
Sound Apartments, Inc. ("Seller")
Gentlemen:
This letter confirms and sets forth the agreements between
Pelican Sound Apartments, Inc. ("Seller"), Decade Companies
Income Properties, a Limited Partnership ("Buyer") and Dunvegan
Mortgage Corporation ("Dunvegan") with respect to the purchase of
the Project by the Buyer. It is understood that on even date
herewith, the Buyer and the Seller have entered into a certain
Purchase and Sale Agreement with respect to a purchase of a 100%
interest in the Project by the Buyer. The following are
additional agreements between the parties hereto:
1. It is understood that the Seller is unwilling to close
on the purchase of a 100% interest in the Project by
the Buyer unless the Buyer pays to Dunvegan at closing
a fee in the amount of $550,000 in consideration of
Dunvegan's assistance and the termination of Dunvegan's
interest in the Project. The Buyer shall pay to
Dunvegan said fee in the amount of $550,000 in the
event the Buyer closes on the purchase of a 100%
interest in the Project. Said fee shall be due only in
the event the Buyer actually closes the purchase from
the Seller of a 100% interest in the Project. It is
understood that the payment of said $550,000 fee is a
fee necessary in the acquisition of the Project and the
Buyer would not be permitted to acquire the Project
without the payment of said fee. Notwithstanding that
the $550,000 fee is being paid to Dunvegan, Dunvegan
agrees that in the event any cash is needed from Seller
to complete the closing with respect to any cost or
expense due by Seller or credit due to Buyer which is
not paid by Seller at closing, Buyer shall be permitted
to deduct said amounts from the fee due to Dunvegan and
the fee shall be deemed reduced by said amount. It is
understood and agreed that this letter agreement along
with the Purchase and Sale Agreement will be assigned
by the Buyer to Associated Bank, Milwaukee as the
Facilitator for the purpose of effecting the Buyer's
like-kind exchange, the Project being the Replacement
Property with respect thereto.
2. In the event the Buyer closes on the purchase of a 100%
interest in the Project, then in consideration of the
assistance to be provided by Dunvegan in renegotiating
the interest rate on the mortgage on the Project in
favor of River Bank America to be taken subject to by
Buyer, if (a) the interest rate of the loan is less
than 7.5% per annum and if (b) the loan is payable in
monthly installments of interest only with no monthly
principal payments required, then Buyer shall pay to
Dunvegan as a fee an amount equal to 25% of the
interest expense savings achieved from a reduction of
the mortgage interest rate below 7.5% per annum. The
interest savings fee shall be payable in quarterly
installments until the Project is sold by the Buyer but
in no event shall the interest savings fee be due for
longer than the Initial Term and shall not exceed in
the aggregate $250,000. The interest savings fee as
and when paid from time to time shall be credited
against the Deferred Fee described in Paragraph 3
below. It is understood that it is expected that the
interest rate shall be reduced to 7% with no principal
amortization for 2 years after closing resulting in a
total fee to Dunvegan for interest-savings of $25,000.
3. In the event the Buyer closes on the purchase of a 100%
interest in the Project, then if the Buyer sells the
Project at any time for more than $13,300,000 (the
"Minimum Amount") or refinances the Project for more
than the Minimum Amount, in consideration of Dunvegan's
assistance and the termination of Dunvegan's interest
in the Project, the Buyer shall pay Dunvegan a total
back-end fee of $250,000, together with interest
thereon as hereinafter provided and reduced by interest
savings payments made pursuant to Paragraph 2 above and
payments in the event of a refinancing as provided
below (hereinafter the "Deferred Fee"). The $250,000
sum (reduced by interest savings payments made pursuant
to Paragraph 2 above and payments in the event of a
refinancing as provided below), shall bear interest at
the rate of 7% per annum, calculated from the fourth
(4th) anniversary of the closing of the Agreement for
Purchase and Sale until the $250,000 fee has been paid
in full, which interest shall be accrued and compounded
annually and be a part of the Deferred Fee. In the
event the selling price or the refinanced loan amount
is less than the Minimum Amount, then the Deferred Fee
shall be reduced by the same difference up to the
amount of the Deferred Fee. In the event that the
aggregate of the sales or brokerage commissions or loan
fees payable to third parties unrelated to the Buyer in
the resale or refinancing of the Project together with
the documentary stamp taxes and intangible taxes and
the premium for the title insurance for which the Buyer
(as seller on the resale or borrower on such
refinancing) is responsible on closing is less than
$345,000, then the Minimum Amount shall be reduced by
the same difference. In the event that the aggregate
of the sales or brokerage commissions or loan fees
payable to third parties unrelated to the Buyer on the
resale or the refinancing of the Project together with
the documentary stamp taxes and intangible taxes and
the premium for the title insurance for which the Buyer
(as seller on the resale or borrower on such
refinancing) is responsible on closing is more than
$345,000, then the Minimum Amount shall be increased by
the same difference. It is understood that in making
all calculations hereunder, the sales or brokerage
commissions shall be deemed to be $200,000
notwithstanding that the actual commissions may be more
or less than said sum. A resale by the Buyer shall
only be made by Buyer to an entity which is unrelated
to Buyer and for not less than a 100% interest in the
Project. It is understood that the Deferred Fee is a
one-time payment (except for amounts of interest
savings payments and amounts from refinancing as
provided below credited against it) which is only due
upon a sale by the Buyer of the Project at a sales
price qualifying for the payment of the Deferred Fee
hereunder, provided that with respect to any
refinancing for an amount qualifying for the payment of
the Deferred Fee hereunder, such amounts paid by the
Buyer to Dunvegan as part or all of the Deferred Fee
shall be credited against the Deferred Fee payable upon
a sale. In the event of a second or subsequent
refinancing by the Buyer, the amount qualifying for the
Deferred Fee shall be only the excess of the new
refinanced amount over the previous refinanced amounts.
Upon a sale of the Project by the Buyer, whether the
full Deferred Fee has been paid or not, Dunvegan's
right to receive any further Deferred Fee shall
terminate (provided that all amounts previously due to
Dunvegan have been paid). The Deferred Fee, if any is
due, shall be payable at the closing of sale of the
Project by the Buyer. In no event shall the total
Deferred Fee (taking into consideration all previous
payments credited to it) exceed $250,000 plus interest
at 7% after the fourth anniversary of closing.
Very truly yours,
DECADE COMPANIES INCOME PROPERTIES, A
LIMITED PARTNERSHIP
By: Decade Companies, General Partner
By: _______________________________
Jeffrey Keierleber, Managing
General Partner
We agree and accept the foregoing terms and agree to be bound
thereby.
PELICAN SOUND APARTMENTS, INC.
Dated: November 30, 1993 By: _____________________________
Rene Gareau, Vice President
DUNVEGAN MORTGAGE CORPORATION
Dated: November 30, 1993 By: _____________________________
Rene Gareau, Vice President
<PAGE>
ACKNOWLEDGEMENT
The undersigned hereby acknowledges that notwithstanding
that Decade Companies Income Properties, A Limited Partnership,
is not signing the Closing Statement with respect to the
acquisition of Pelican Sound Apartments, 10200 Gandy Boulevard,
that Decade Companies Income Properties, A Limited Partnership,
agrees to be bound by the provisions thereof.
Further notwithstanding the involvement of Associated Bank
Milwaukee as a qualified intermediary in the acquisition of
Pelican Sound Apartments as the Replacement Property in the like-
kind exchange by Decade Companies Income Properties, A Limited
Partnership, Decade Companies Income Properties, A Limited
Partnership, is bound by that certain Letter Agreement dated as
of November 30, 1993, dealing with, among other things, interest-
savings payments and the "Deferred Fee."
Dated as of the 30th day of November, 1993.
DECADE COMPANIES INCOME PROPERTIES,
A LIMITED PARTNERSHIP
By: Decade Companies,
General Partner
By: _______________________________
Jeffrey Keierleber,
Managing General Partner
<PAGE>
ACKNOWLEDGEMENT
November 30, 1993
Pelican Sound Apartments, Inc.
c/o 1231 Yonge Street
Suite 300
Toronto, Ontario
M4T 2T8
CANADA
Re: Agreement for Purchase and Sale of Pelican Sound
Apartments, 10200 Gandy Boulevard, St. Petersburg,
Florida (the "Project") between Decade Companies Income
Properties, A Limited Partnership ("Buyer") and Pelican
Sound Apartments, Inc. ("Seller")
Gentlemen:
The undersigned acknowledges the following as it relates to
that certain Letter Agreement of even date herewith between Buyer
and Seller with respect to the purchase of the Project by the
Buyer.
1. In the event that Dunvegan provides assistance in
renegotiating the interest rate on the mortgage
loan on the property in favor of RIVER BANK
AMERICA, and in the event the Project is sold or
refinanced prior to the first two years after
closing for any amount, the Buyer agrees to pay to
Dunvegan the total fee for interest savings of
$25,000, which would have been earned by Dunvegan
if the property had not been sold or refinanced
prior to the first two years after closing. In
addition, Buyer agrees to pay to Dunvegan any
amounts called for in Paragraph 3 of the Letter
Agreement, if applicable.
2. In the event, the General Partner's interest is
sold, transferred or otherwise compromised, the
Buyer agrees to pay Dunvegan the total back-end
fee of $250,000 together with interest thereon, as
provided in the Letter Agreement, reduced only by
interest-savings payments made pursuant to
Paragraph 2 of the Letter Agreement, and payments
in the event of refinancing, as provided in
Paragraph 3 of the Letter Agreement.
3. Notwithstanding the foregoing, the General
Partners of Decade Companies or either of them may
voluntarily withdraw therefrom and substitute in
their place a corporation having a net worth of at
least $1,000,000. In addition, the General
Partner may incorporate, provided at such time it
has a net worth of at least $1,000,000. In either
of any of these events, the sum payable to
Dunvegan shall not be accelerated.
Dated as of this 30th day of November, 1993.
DECADE COMPANIES INCOME PROPERTIES,
A LIMITED PARTNERSHIP
By: Decade Companies,
General Partner
By: _______________________________
Jeffrey Keierleber,
Managing General Partner
DECADE COMPANIES, GENERAL PARTNER
By: _______________________________
Jeffrey Keierleber,
Managing General Partner
EXHIBIT 10.13
FHA FORM NO. 2466
Revised November 1969
(Previous Revision obsolete)
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
FEDERAL HOUSING ADMINISTRATION
REGULATORY AGREEMENT FOR MULTI-FAMILY HOUSING PROJECTS
(Under Sections 207, 220, 221(d)(4),
231 and 232, Except Nonprofits)
Project No. 075-32563-P.M.
Mortgagee First Wisconsin Trust Company (present)
original Mortgage - Mortgage Associates, Inc.
Amount of Mortgage Note $3,335,800.00 Date October 29, 1979
Mortgage: Recorded: October 29, 1979 Date October 29, 1979
State: Wisconsin County: Dane
Book 1284 Page 24
which mortgage was assigned to Government National Mortgage
Association by assignment dated January 20, 1981, recorded February
10, 1981 -- Volume 2576, Page 7, Document No. 1697083; further
assigned to First Wisconsin Trust Company as Trustee by assignment
dated August 12, 1981, recorded November 10, 1981 in Volume 3219.
Originally endorsed for insurance under section
This Agreement entered into this 12th day of December, 1988,
between
whose address is Brookfield Lakes Corporate Center
18000 West Sarah Lane, Brookfield WI 53005
their successors, heirs, and assigns (jointly and severally,
hereinafter referred to as Owners) and the undersigned Secretary of
Housing and Urban Development and his successors (hereinafter referred
to as Secretary).
In consideration of the endorsement for insurance by the
Secretary of the above described note or in consideration of the
consent of the Secretary to the transfer of the mortgaged property or
the sale and conveyance of the mortgaged property by the Secretary,
and in order to comply with the requirements of the National Housing
Act, as amended and the Regulations adopted by the Secretary pursuant
thereto, Owners agree for themselves, their successors, heirs and
assigns, that in connection with the mortgaged property and the
project operated thereon and so long as the contract of mortgage
insurance continues in effect, and during such further period of time
as the Secretary shall be the owner, holder or reinsurer of the
mortgage, or during any time the Secretary is obligated to insure a
mortgage on the mortgaged property:
1. Owners, except as limited by paragraph 17 hereof, assume and
agree to make promptly all payments due under the note and
mortgage.
2. (a) Owners shall establish or continue to maintain a
reserve fund for replacements by the allocation to such
reserve fund in a separate account with the mortgagee or in
a safe and responsible depository designated by the
mortgagee, concurrently with the beginning of payments
towards amortization of the principal of the mortgage
insured or held by the Secretary of an amount equal to
$1,116.75 per month unless a different date or amount is
approved in writing by the Secretary.
Such funds, whether in the form of a cash deposit or
invested in obligations of, or fully guaranteed as to
principal by, the United States of America shall at all
times be under the control of the mortgagee. Disbursements
from such fund, whether for the purpose of effecting
replacement of structural elements, and mechanical equipment
of the project or for any other purpose, may be made only
after receiving the consent in writing of the Secretary. In
the event of a default in the terms of the mortgage,
pursuant to which the loan has been accelerated, the
Secretary may apply or authorize the application of the
balance in such fund to the amount due on the mortgage debt
as accelerated.
(b) Where Owners are acquiring a project already subject to
an insured mortgage, the reserve fund for replacements to be
established will be equal to the amount due to be in such
fund under existing agreements or charter provisions at the
time Owners acquire such project, and payments hereunder
shall begin with the first payment due on the mortgage after
acquisition, unless some other method of establishing and
maintaining the fund is approved in writing by the
Secretary.
3. Real property covered by the mortgage and this agreement is
described in Schedule A attached hereto.
(This paragraph 4 is not applicable to cases insured under
Section 232).
4. (a) Owners shall make dwelling accommodation and services
of the project available to occupants at charges not
exceeding those established in accordance with a rental
schedule approved in writing by the Secretary.
Accommodations shall not be rented for a period of less than
thirty (30) days, or, unless the mortgage is insured under
Section 231, for more than three years. Commercial
facilities shall be rented for such use and upon such terms
as approved by the Secretary. Subleasing of dwelling
accommodations, except for subleases of single dwelling
accommodations by the tenant thereof, shall be prohibited
without prior written approval of Owners and the Secretary
and any lease shall so provide. Upon discovery of any
unapproved sublease, Owners shall immediately demand
cancellation and notify the Secretary thereof.
(b) Upon prior written approval by the Secretary, Owners
may charge to and receive from any tenant such amounts as
from time to time may be mutually agreed upon between the
tenant and the Owner for any facilities and/or services
which may be furnished by the Owner or others to such tenant
upon his request, in addition to the facilities and services
included in the approved rental schedule.
(c) The Secretary will at any time entertain a written
request for a rent increase properly supported by
substantiating evidence and within a reasonable time shall:
(i) Approve a rental schedule that is necessary to
compensate for any net increase, occuring since
the last approved rental schedule, in taxes (other
than income taxes) and operating and maintenance
cost over which Owners have no effective control,
or
(ii) Deny the increase stating the reasons therefor.
5. (a) If the mortgage is originally a Secretary-held purchase
money mortgage, or is originally endorsed for insurance
under any Section other than Sections 231 or 232, Owners
shall not in selecting tenants discriminate against any
person or persons by reason of the fact that there are
children in the family.
(b) If the mortgage is originally endorsed for insurance
under Section 221 or 231, Owners shall in selecting tenants
give to persons or families designated in the National
Housing Act an absolute preference or priority of occupancy
which shall be accomplished as follows:
(1) For a period of sixty (60) days from the date of
original offering, unless a shorter period of time
is approved in writing by the Secretary, all units
shall be held for such preferred applicants, after
which time any remaining unrented units may be
rented to non-preferred applicants;
(2) Thereafter, and on a continuing basis; such
preferred applicants shall be given preference
over non-preferred applicants in their placement
on a waiting list to be maintained by the Owners;
and
(3) Through such further provisions agreed in writing
by the parties.
(c) Without the prior written approval of the Secretary not
more than 25% of the number of units in a project insured
under Section 231 shall be occupied by persons other than
elderly persons as defined by the National Housing Act.
(d) All advertising or efforts to rent a project insured
under Section 231 shall reflect a bona fide effort of the
Owners to obtain occupancy by elderly persons as defined by
the National Housing Act.
6. Owners shall not without the prior written approval of the
Secretary:
(a) Convey, transfer, or encumber any of the mortgaged
property, or permit the conveyance, transfer or encumbrance
of such property.
(b) Assign, transfer, dispose of, or encumber any personal
property of the project, including rents, or pay out any
funds except from surplus cash, except for reasonable
operating expenses and necessary repairs.
(c) Convey, assign, or transfer any beneficial interest in
any trust holding title to the property, or the interest of
any general partner in a partnership owning the property, or
any right to manage or receive the rents and profits from
the mortgaged property.
(d) Remodel, add to, reconstruct, or demolish any part of
the mortgaged property or subtract from any real or personal
property of the project.
(d) Make, or receive and retain, any distribution of assets
or any income of any kind of the project except surplus cash
and except on the following conditions:
(1) All distributions shall be made only as of and
after the end of a semiannual or annual fiscal
period, and only as permitted by the law of the
applicable jurisdiction;
(2) No distribution shall be made from borrowed funds,
prior to the completion of the project or when
there is any default under this Agreement or under
the note or mortgage;
(3) Any distribution or any funds of the project,
which the party receiving such funds is not
entitled to retain hereunder, shall be held in
trust separate and apart from any other funds; and
(4) There shall have been compliance with all
outstanding notices of requirements for proper
maintenance of the project.
(f) Engage, except for natural persons, in any other
business or activity, including the operation of any
other rental project, or incur any liability or
obligation not in connection with the project.
(g) Require, as a condition of the occupancy or leasing of
any unit in the project any consideration or deposit
other than the prepayment of the first month's rent
plus a security deposit in an amount not in excess of
one month's rent to guarantee the performance of the
covenants of the lease. Any funds collected as
security deposits shall be kept separate and apart from
all other funds of the project in a trust account the
amount of which shall at all times equal or exceed the
aggregate of all outstanding obligations under said
account.
(h) Permit the use of the dwelling accommodations or
nursing facilities of the project for any purpose
except the use which was originally intended, or permit
commercial use greater than that originally approved by
the Secretary.
7. Owners shall maintain the mortgaged premises, accommodations
and the grounds and equipment appurtenant thereto, in good
repair and condition. In the event all or any of the
buildings covered by the mortgage shall be destroyed or
damaged by fire or other casualty, the money derived from
any insurance on the property shall be applied in accordance
with the terms of insured mortgage.
8. Owners shall not file any petition in bankruptcy or for a
receiver or in insolvency or for reorganization or
composition or make any assignment for the benefit of
creditors or to a trustee for creditors, or permit an
adjudication in bankruptcy or the taking possession of the
mortgaged property or any part thereof by a receiver or the
seizure and sale of the mortgaged property or any part
thereof under judicial process or pursuant to any power of
sale, and fail to have such adverse actions set aside within
forty-five (45) days.
(9) (a) Any management contract entered into by Owners or any
of them involving the project shall contain a provision
that, in the event of default hereunder, it shall be subject
to termination without penalty upon written request by the
Secretary. Upon such request Owners shall immediately
arrange to terminate the contract within a period of not
more than thirty (30) days and shall make arrangements
satisfactory to the Secretary for continuing proper
management of the project.
(b) Payment for services, supplies, or materials shall not
exceed the amount ordinarily paid for such services,
supplies, or materials in the area where the services are
rendered or the supplies or materials furnished.
(c) The mortgaged property, equipment, buildings, plans,
offices, apparatus, devices, books, contracts, records,
documents, and other papers relating thereto shall at all
times be maintained in reasonable condition for proper audit
and subject to examination and inspection at any reasonable
time by the Secretary or his duly authorized agents. Owners
shall keep copies of all written contacts or other
instruments which affect the mortgaged property, all or any
of which may be subject to inspection and examination by the
Secretary or his duly authorized agents.
(d) The books and accounts of the operations of the
mortgaged property and of the project shall be kept in
accordance with the requirements of the Secretary.
(e) Within sixty (60) days following the end of each fiscal
year the Secretary shall be furnished with a complete annual
financial report based upon an examination of the books and
records of mortgagor prepared in accordance with the
requirements of the Secretary, certified to by an officer or
responsible Owner and, when required by the Secretary,
prepared and certified by a Certified Public Accountant, or
other person acceptable to the Secretary.
(f) At request of the Secretary, his agents, employees, or
attorneys, the Owners shall furnish monthly occupancy
reports and shall give specific answer to questions upon
which information is desired from time to time relative to
the income, assets, liabilities, contracts, operation, and
condition of the property and the status of the insured
mortgage.
(g) All rents and other receipts of the project shall be
deposited in the name of the project in a bank, whose
deposits are insured by the F.D.I.C. Such funds shall be
withdrawn only in accordance with the provisions of this
Agreement for expenses of the project or for distributions
of surplus cash as permitted by paragraph 6(e) above. Any
Owner receiving funds of the project other than by such
distribution of surplus cash shall immediately deposit such
funds in the project bank account and failing so to do in
violation of this agreement shall hold such funds in trust.
Any Owner receiving property of the project in violation of
this Agreement shall immediately deliver such property to
the project and failing so to do shall hold such property in
trust. As such time as the Owners shall have lost control
and/or possession of the project, all funds held in trust
shall be delivered to the mortgagee to the extent that the
mortgage indebtedness has not been satisfied.
(h) If the mortgage is insured under Section 232:
1. The Owners or lessees shall at all times maintain in full
force and effect from the state or other licensing authority such
license as may be required to operate the project as a nursing
home and shall not lease all or part of the project except on
terms approved by the Secretary.
2. The Owner shall suitably equip the project for nursing home
operations
3. The Owners shall execute a Security Agreement and Financing
Statement (or other form of chattel lien) upon all items of
equipment, except as the Secretary may exempt, which are not
incorporated as security for the insured mortgage. The Security
Agreement and Financing Statement shall constitute a first lien
upon such equipment and shall run in favor of the mortgagee as
additional security for the insured mortgage.
4. No litigation seeking the recovery of a sum on excess of
$3,000 nor any action for specific performance or other equitable
relief shall be instituted nor shall any claim for a sum in
excess of $3,000 be settled or compromised by the Owners unless
prior written consent thereto has been obtained from the
Secretary. Such consent may be subject to such terms and
conditions as the Secretary may prescribe.
(i) If mortgage is insured under Section 231, Owners or lessees
shall at all times maintain in full force and effect from the
state of other licensing authority such license as may be
required to operate the project as housing for the elderly.
10. Owners will comply with the provisions of any Federal,
State, or local law prohibiting discrimination in housing on the
grounds of race, color, creed, or national origin, including
Title VI of the Civil Rights Act of 1964 (Public Law 88-352, 78
Stat. 241), all requirements imposed by or pursuant to the
Regulations of the Department of Housing and Urban Development
(24 CFR, Subtitle A, Part 1) issued pursuant to that title, and
regulations issued pursuant to Executive Order 11063.
11. Upon a violation of any of the above provisions of this
Agreement by Owners, the Secretary may give written notice,
thereof, to Owners, by registered or certified mail, addressed to
the addresses stated in this Agreement, or such other addresses
as may subsequently, upon appropriate written notice thereof to
the Secretary, be designated by the Owners as their legal
business address. If such violation is not corrected to the
satisfaction of the Secretary within thirty (30) days after the
date such notice is mailed or within such further time as the
Secretary determines is necessary to correct the violation,
without further notice the Secretary may declare a default under
this Agreement effective on the date of such declaration of
default and upon such default the Secretary may:
(a)(i) If the Secretary holds the note - declare the
whole of said indebtedness immediately due and
payable and then proceed with the foreclosure of
the mortgage;
(ii) If said note is not held by the Secretary - notify
the holder of the note of such default and request
holder to declare a default under the note and
mortgage, and holder after receiving such notice
and request, but not otherwise, at its option, may
declare the whole indebtedness due, and thereupon
proceed with foreclosure of the mortgage, or
assign the note and mortgage to the Secretary as
provided in the Regulations;
(b) Collect all rents and charges in connection with the
operation of the project and use such collections to pay the
Owner's obligations under this Agreement and under the note
and mortgage and the necessary expenses of preserving the
property and operating the project;
(c) Take possession of the project, bring any action
necessary to enforce any rights of the Owners growing out of
the project operation, and operate the project in accordance
with the terms of this Agreement until such time as the
Secretary in his discretion determines that the Owners again
in a position to operate the project in accordance with the
terms of this Agreement and in compliance with the
requirements of the note and Mortgage;
(d) Apply to any court, State or Federal, for specific
performance of this Agreement, for an injunction against any
violation of the Agreement, for the appointment of a
receiver to take over and operate the project in accordance
with the terms of the Agreement, or for such other relief as
may be appropriate, since the injury to the Secretary,
arising from a default under any of the terms of this
Agreement would be irreparable and the amount of damage
would be difficult to ascertain.
12. As security for the payment due under this Agreement to the
reserve fund for replacements, and to secure the Secretary
because of his liability under the endorsement of the note
for insurance, and as security for the other obligations
under this Agreement, the Owners respectively assign, pledge
and mortgage to the Secretary their rights to the rents,
profits, income and charges of whatsoever sort which they
may receive or be entitled to receive from the operation of
the mortgage property, subject, however, to any assignment
of rents in the insured mortgage referred to herein. Until
a default is declared under this Agreement, however,
permission is granted to Owners to collect and retain under
the provisions of this Agreement such rents, profit, income,
and charges, but upon default this permission is terminated
as to all rents due or collected thereafter.
13. As used in this Agreement the term:
(a) "Mortgage" includes "Deed of Trust", "Chattel
Mortgage", and any other security for the note identified
herein, and endorsed for insurance or held by the Secretary;
(b) "Mortgagee" refers to the holder of the mortgage
identified herein, its successors and assigns;
(c) "Owners" refers to the persons named in the first
paragraph hereof and designated as "Owner, their successors,
heirs and assigned";
(d) "Mortgaged Property" includes all property, real,
personal, or mixed, covered by the mortgage or mortgages
securing the note endorsed for insurance or held by the
Secretary;
(e) "Project" includes the mortgaged property and all its
other assets of whatsoever nature or whatsoever situate,
used in or owned by the business conducted on said mortgaged
property, which business is providing housing and other
activities as are incidental thereto;
(f) "Surplus Cash" means any cash remaining after:
(1) the payment of:
(i) All sums due or currently required to be paid
under the terms of any mortgage or note
insured or held by the Secretary;
(ii) All amounts required to be deposited in the
reserve fund for replacements;
(iii) All obligation of the project other than the
insured mortgage unless funds for payment are
set aside or deferment of payment has been
approved by the Secretary; and
(2) the segregation of:
(i) An amount equal to the aggregate of all
special funds required to be maintained by
the project;
(ii) All tenant security deposits held;
(g) "Distribution" means any withdrawal or taking of cash
or any assets of the project, including the segregation
of cash or assets for subsequent withdrawal within the
limitations of Paragraph 6(c) hereof, and excluding
payment for reasonable expenses incident to the
operation and maintenance of the project.
(h) "Default" means a default declared by the Secretary
when a violation of this Agreement is not corrected to
his satisfaction within the time allowed by this
Agreement or such further time as may be allowed by the
Secretary after written notice;
(i) "Section" refers to Section of the National Housing
Act, as amended.
14. This instrument shall bind, and the benefits shall inure to,
the respective Owners, their heirs, legal representatives,
executors, administrators, successors, in office or
interest, and assigns, and to the Secretary and his
successors so long as the contract of mortgage insurance
continues in effect, and during such further time as the
Secretary shall be the owner, holder, or reinsurer of the
mortgage, or obligated to reinsure the mortgage.
15. Owners warrant that they have not, and will not, execute any
other agreement with provisions contradictory of, or in
opposition to, the provisions hereof, and that, in any
event, the requirements of this Agreement are paramount and
controlling as to the rights and obligations set forth and
supersede any other requirements in conflict therewith.
16. The invalidity of any clause, part or provision of this
Agreement shall not affect the validity or the remaining
portions thereof.
17. The following Owners: Decade Companies, Jeffrey Keierleber,
Harold Barian and Decade Companies Income Properties
do not assume personal liability for payments due under the
note and mortgage, or for the payments to the reserve for
replacements, or for matters not under their control,
provided that said Owners shall remain liable under this
Agreement only with respect to the matters hereinafter
state; namely:
(a) for funds or property of the project coming into their
hands which, by the provisions hereof, they are not
entitled to retain; and
(b) for their own acts and deeds or acts and deeds of other
which they have authorized in violation of the
provisions hereof.
(To be executed with formalities for recording
a deed to real estate)
<PAGE>
LEGAL DESCRIPTION
Lots 2 and 3, Certified Survey Map #2982, recorded in Volume 11
of Certified Surveys on page 399, #1593404 in the City of Madison,
County of Dane, State of Wisconsin.
<PAGE>
ADDENDUM TO REGULATORY AGREEMENT
This Addendum is a part of the Regulatory Agreement executed on
even date herewith to which this Addendum is attached:
1. Notwithstanding any provision in the Regulatory Agreement to
the contrary, the parties agree that:
Paragraph 4 of the Regulatory Agreement is hereby deleted and the
following is inserted in lieu thereof:
4(a) The Owner shall not rent the units for a period of less
than thirty (30) days. Commercial facilities shall be
rented for such use and upon such terms as determined by the
Owner. Subleasing of dwelling accommodations, except for
subleases of single dwelling accommodations by the tenant
thereof, shall be prohibited without prior written approval
of the Owner and the Secretary and any lease shall so
provide. Upon discovery of any unapproved sublease, the
Owner shall immediately demand cancellation and notify the
Secretary thereof.
4(b) The Owner may charge to and receive from any tenant
such amounts as from time to time may be mutually agreed
upon between the tenant and the Owner for any rental
accommodations, facilities and/or services which may be
furnished by the Owner or others to such tenant upon his
request.
4(c) In the event the project is under jurisdiction of a
local rent control law or ordinance and the Owner desires
the Secretary to preempt those controls, the Owner shall
comply with applicable regulations or instructions in effect
at the time of application of preemption, currently 24 CFR
403, Subpart B.
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DECADE COMPANIES INCOME PROPERTIES, A LIMITED
PARTNERSHIP
By: Decade Companies, General Partner
By: /s/ Jeffrey Keierleber_______________
Jeffrey Keierleber, General Partner
By: /s/ Harold Barian____________________
Harold Barian, General Partner
STATE OF WISCONSIN )
) ss.
MILWAUKEE COUNTY )
The foregoing instrument was acknowledged before me this 12 day
of December, 1988 by Jeffrey Keierleber and Harold Barian as the
general partners of Decade Companies, the general partner of Decade
Companies Income Properties, A Limited Partnership.
/s/ Mary Neese Fertl_________________
Notary Public
State of Wisconsin, Milwaukee County
My Commission: is permanent
SECRETARY OF HOUSING AND URBAN
DEVELOPMENT acting by and through
the FEDERAL HOUSING COMMISSIONER
By: /s/ Delbert F. Reynolds__________
(Authorized Agent)
Delbert F. Reynolds
Manager
STATE OF WISCONSIN )
)ss.
MILWAUKEE COUNTY )
On this 17th day of January, 1989 before me appeared fully
appointed Delbert F. Reynolds, who being duly sworn, did say that he
is the duly appointed Manager and the person who executed the
foregoing instrument by virtue of the authority vested in him by 24
C.F.R. 200.118 and 119 and acknowledged the same to, for and on behalf
of the FEDERAL HOUSING COMMISSIONER.
<PAGE>
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
notarial seal on the day and year last above written.
/s/ Faith Davis________________________
Notary Public, Milwaukee County
State of Wisconsin
My commission: Dec. 24, 1989
This instrument was drafted by and after recording should be
returned to Attorney Mary Neese Fertl, Whyte & Hirschboeck S.C.,
111 East Wisconsin Avenue, Suite 2100, Milwaukee WI 53202
