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 0000
Xxxxxxxx Xxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 ("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 000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxx, Xxx Xxxx
00000 ("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 00000 Xxxxx
Xxxxxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 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
XxXxxx Xxxxxx, general partner
RIVER BANK AMERICA
By:/s/Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK)
On the 27th day of December, 1989, before me personally came
XxXxxx Xxxxxx, 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/Xxxxx X. Xxxxxxxxx
Notary Public
Xxxxx X. Xxxxxxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in Queens County
Commission Expires Nov. 3, 0000
XXXXX XX XXX XXXX )
)ss.:
COUNTY OF NEW YORK)
On the 27th day of December, 1989, before me personally came
Xxxxxx X. Xxxxxxx to me known, who, being by me duly sworn did
depose and say that he resides at 000 Xxxxxxxx Xxxxxx, Xxx
Xxxxxxxx, 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/Xxxxx X. Xxxxxxxxx
Notary Public
Xxxxx X. Xxxxxxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in Queens County
Commission Expires Nov. 3, 1990
SCHEDULE A
That part of the SE 1/4 of Section 18, and that part of the NE
1/4 of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 17 East, Pinellas
County, Florida, more particularly described as follows:
Beginning at a point on the north line of Section 00, Xxxxxxxx 00
Xxxxx, Xxxxx 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 Xxxxx 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;
Xxx 0, Xxxxx 0, XXXXXXX XXXXX, Xxxx Book 98, Pages 3 and 4,
Public Records of Pinellas County, Florida.
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 Xxxxx X. Xxxxxx, Esq.
of the law firm listed below and after filing return to:
XXXXX XXXX XXXXXXX XXXXXXXXX & XXXXXX
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxx
(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 0000 Xxxxxxxx
Xxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 (the "Mortgagor") and
RIVER BANK AMERICA, a New York banking corporation having its
principal place of business and office at 000 Xxxxxxxx Xxxxxx,
Xxx Xxxxxxxx, Xxx Xxxx 00000 (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 & Xxxxxx, 0000 Xxxxxxx Xxxxx, 000 Xxxxx Xxxxx, Xxxxxx XX
00000 Attention: Xxxxxxx Xxxxxx, Esq., and (ii) to the
Mortgagee, at the address first set forth above, Attention:
Corporate Secretary, with copies to Xxxxxx Xxxxxxxx, Esq., 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx and to Xxxxx Xxxx Xxxxxxx
Xxxxxxxxx & Xxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, 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
Xxxxx xxxx Xxxxxxx Xxxxxxxxx & Xxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, and all of its attorneys, including the preparer
hereof, Xxxxx X. Xxxxxx, 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: _____________________________
XxXxxx Xxxxxx,
general partner
SCHEDULE A
That Part of the SE 1/4 of Section 18, and that part of the NE
1/4 of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 17 East, Pinellas
County, Florida, more particularly described as follows:
Beginning at a point on the north line of Section 00, Xxxxxxxx 00
Xxxxx, Xxxxx 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 Xxxxx 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;
Xxx 0, Xxxxx 0, XXXXXXX XXXXX, Xxxx Book 98 , Pages 3 and 4,
Public Records of Pinellas County, Florida.
