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EXHIBIT 4.8
Prepared by and return to:
Xxxxxxx X. Xxxxxx, Esq./rlt
Williams, Parker, Xxxxxxxx, Xxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
(000) 000-0000
MODIFICATION AND
ADDITIONAL ADVANCE AGREEMENT
THIS AGREEMENT, entered into on March 29, 1996, between SUNINCO, INC.,
a Florida corporation ("Mortgagor"), whose post office address is 0000
Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000, and NORTHERN TRUST BANK OF FLORIDA,
N.A., f/k/a Northern Trust Bank of Florida/Sarasota, N.A. ("Mortgagee"), whose
post office address is 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000,
W I T N E S S E T H :
WHEREAS, Mortgagee is the owner and holder of a promissory note in the
original principal amount of $2,000,000.00 dated January 9, 1992 ("Note"), and
WHEREAS, the Note is secured by a real estate mortgage recorded in
Official Records Book 2358, Page 2881, Public Records of Sarasota County,
Florida ("Mortgage"), by an assignment of leases recorded in Official Records
Book 2358, Page 2909, Public Records of Sarasota County, Florida ("Assignment
of Leases"), and by a UCC-1 Financing Statement recorded in Official Records
Book 2361, Page 2446, Public Records of Sarasota County, Florida, and filed
with the Florida Secretary of State, file #92-0000008803 ("UCC-1"), and
WHEREAS, Mortgagor is the owner of the property encumbered by the
Mortgage ("Property") and Mortgagor desires to obtain an additional advance
under the terms and provisions of the Mortgage and to modify same as
hereinafter provided,
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) and
other valuable considerations, and of the covenants and agreements of Mortgagor
and Mortgagee, it is agreed as follows:
1. Mortgagor has executed simultaneously with the execution of
this Agreement a promissory note in favor of Mortgagee in the principal amount
of $782,805.62 (the "Additional Advance Note"). The Additional Advance Note
evidences a future advance made pursuant to the Mortgage, and is secured by the
Mortgage, as modified herein, and by the Assignment of Leases and UCC-1. The
Note and the Additional Advance Note are hereby consolidated into one loan, as
evidenced by promissory note of even date herewith in the amount of
$2,475,000.00 ("Consolidated Note"). The Consolidated Note replaces the Note
and is secured by the Mortgage, Assignment of Leases, and UCC-1. All references
to the Note
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contained in the Mortgage, Assignment of Leases, or any other loan documents
shall be deemed to refer to the Consolidated Note.
2. Mortgagor, jointly and severally, promises and agrees to pay
to Mortgagee the principal balance on the Consolidated Note and Mortgage,
together with interest thereon in accordance with the terms thereof, with the
unpaid principal balance, together with accrued interest thereon, to be due and
payable April 1, 2006.
3. This Agreement is intended solely as a modification of the
existing Mortgage, and not as a novation thereof. It is the full purpose and
intent of the parties hereto that the priority of the Mortgage remain effective
as the original recording date and time of the Mortgage.
4. Mortgagor hereby warrants to Mortgagee that there are no
recorded or unrecorded mortgages, liens, or other encumbrances against the
Property other than the Mortgage.
5. Mortgagor agrees to keep and perform fully all of the terms,
covenants and conditions of the Consolidated Note and Mortgage as modified
hereby. All terms, covenants and conditions of the Consolidated Note and
Mortgage which are not inconsistent herewith are hereby expressly confirmed,
ratified and declared to be in full force and effect.
6. State of Florida documentary stamps in the amount required by
law for the Note were affixed to the Mortgage and were cancelled pursuant to
law. Documentary stamps for the Additional Advance Note have been paid upon the
recording of this Modification Agreement. The Consolidated Note qualifies for
an exemption from payment of documentary stamps under regulations adopted
pursuant to Chapter 201, Florida Statutes, and therefore, no additional
documentary stamps are now due or payable; however, in the event that the
Department of Revenue, its agents or employees, notifies either Mortgagor or
Mortgagee that the transaction which is the subject of this Modification
Agreement is subject to payment of documentary stamp tax, intangible tax, or
any other such tax, then, in such event, Mortgagor agrees to immediately remit
to the Department of Revenue or to the Mortgagee the full amount of such tax
deemed to be due and payable as requested by the Department of Revenue.
Mortgagor may contest any liability for such tax payment; however, any such
contest shall be taken solely at the election, cost, and expense of Mortgagor.
The liability of Mortgagor under this provision shall survive the satisfaction
of the obligations referenced hereunder. Any failure of Mortgagor to comply
with the terms and provisions of this section shall constitute a default under
the Consolidated Note, Mortgage, and all other loan documents executed in
connection therewith.
7. For and in consideration of Mortgagee's agreement to modify
the terms of Mortgagor's loan as set forth in this
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Agreement, Mortgagor hereby waives any and all claims, causes of action, and
defenses which it may have against Mortgagee arising prior to the execution of
this Agreement and agrees to hold Mortgagee, its employees, officers, and
agents harmless from all matters, claims, and liabilities existing or arising
prior to the date hereof. Mortgagor acknowledges, represents, and warrants to
Mortgagee that Mortgagor has no right of offset against the indebtedness
evidenced by the Consolidated Note nor defenses or claims against Mortgagee
with respect to the Note, Mortgage, Consolidated Note, this Agreement, or any
other loan documents executed in connection with any of the foregoing, or any
other transaction or course of dealing between Mortgagor and Mortgagee arising
out of or relating in any way to same.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date and year first above written.
SUNINCO, INC., a Florida NORTHERN TRUST BANK OF FLORIDA,
corporation N.A.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------ ------------------------------
Xxxxx X. Xxxxx Xxxxxxx X. XxXxxxxx
As its President As its Vice President
MORTGAGOR MORTGAGEE
STATE OF FLORIDA
COUNTY OF SARASOTA
The foregoing instrument was acknowledged before me this ____ day of April 1996
by Xxxxx X. Xxxxx, as President of Suninco, Inc., a Florida corporation, on
behalf of the corporation. The above-named person is personally known to me or
has produced __________________________ as identification. If no type of
identification is indicated, the above-named person is personally known to me.
/s/ Xxxxxxxxx Xxxxxxxx
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Signature of Notary Public
(Notary Seal)
Xxxxxxxxx Xxxxxxxx
---------------------------------
Print Name of Notary Public
I am a Notary Public of the State of
Florida, and my commission expires
on February 28, 1998
--------------------------------.
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STATE OF FLORIDA
COUNTY OF SARASOTA
The foregoing instrument was acknowledged before me this ____ day of April 1996
by Xxxxxxx X. XxXxxxxx, as Vice President of Northern Trust Bank of Florida,
N.A., on behalf of the corporation. The above-named person is personally known
to me or has produced __________________________ as identification. If no type
of identification is indicated, the above-named person is personally known to
me.
/s/ Xxxxxxxxx Xxxxxxxx
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Signature of Notary Public
(Notary Seal)
Xxxxxxxxx Xxxxxxxx
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Print Name of Notary Public
I am a Notary Public of the State of
Florida, and my commission expires
on February 28, 1998
--------------------------------.
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