EXHIBIT 10.5
This instrument was prepared by and after
recordation should be returned to: |
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Xxxxx X. Xxxxxx, Esq. |
Xxxxxxx Xxxxxx, P.A. |
000 Xxxxxxxx Xxxxxx, Xxxxx 0000 |
Xxxx Xxxx Xxxxx, Xxxxxxx 00000 |
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NOTE, MORTGAGE AND LOAN DOCUMENTS MODIFICATION AND SPREADER AGREEMENT
THIS NOTE, MORTGAGE AND LOAN DOCUMENTS MODIFICATION AND SPREADER
AGREEMENT (the "Modification") is made and entered into the 6th day of January,
2003, by and between ST. LUCIE WEST DEVELOPMENT COMPANY, LLC, a Florida limited
liability company, successor by merger to ST. LUCIE WEST DEVELOPMENT CORP., a
Delaware corporation, and LAKE XXXXXXX DEVELOPMENT COMPANY, LLC, a Florida
limited liability company, successor by merger to LAKE XXXXXXX DEVELOPMENT
CORP., a Delaware corporation, having an address at 0000 Xxxxxxxxxxxx Xxxxxxxxx,
#000, Xxxx Xx. Xxxxx, Xxxxxxx 00000 (collectively "Mortgagor") and WACHOVIA
BANK, NATIONAL ASSOCIATION, formerly know as FIRST UNION NATIONAL BANK, having
an address at 000 Xxxx Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx
00000 ("Mortgagee").
WHEREAS, Mortgagor has executed and delivered to Mortgagee that certain
Mortgage and Security Agreement dated and recorded September 20, 2001 in
Official Record Book 1436, Page 2419, as amended in Official Record Book 1456,
Page 1047, of the Public Records of St. Lucie County, Florida (the "Mortgage"),
which (i) secures that certain Promissory Note dated September 20, 2001 in the
amount of $10,475,000.00 ("Note") given by Mortgagor to Mortgagee; and (ii)
encumbers that certain real property located in St. Lucie County, Florida, as
more particularly described in SCHEDULE A of the Mortgage less property
previously released from the lien of the Mortgage ("Existing Security"); and
WHEREAS, in accordance with the terms of the loan by Mortgagee to
Mortgagor as evidenced by the Note and Mortgage, Mortgagee has agreed to extend
the Maturity Date of the Note as hereinafter provided; and
WHEREAS, the Mortgage requires that Mortgagor maintain a loan-to-value
ratio of 65% during the term of the loan and as a result of the previous release
of various parcels of the original collateral securing the Mortgage, Mortgagee
NOTE FOR CLERK: ALL DOCUMENTARY STAMP AND INTANGIBLE TAXES REQUIRED TO BE PAID
ON THAT XXXXXXX00 HAVE BEEN PAID AND AFFIXED TO THAT CERTAIN MORTGAGE AND
SECURITY AGREEMENT GIVEN BY MORTGAGOR TO MORTGAGEE DATED SEPTEMBER 20, 2001 AND
RECORDED IN OFFICIAL RECORD BOOK 1436, PAGE 2419, AS AMENDED IN OFFICIAL RECORDS
BOOK 1456, PAGE 1047, BOTH OF THE PUBLIC RECORDS OF ST. LUCIE COUNTY, FLORIDA
(THE "MORTGAGE"). NO ADDITIONAL CONSIDERATION IS BEING PROVIDED AND NO
ADDITIONAL DOCUMENTARY STAMPS OR INTANGIBLE TAX ARE DUE AND PAYABLE ON THIS
AGREEMENT.
has required that Mortgagor (i) provide additional collateral security for the
repayment of the Note and Mortgage as hereinafter provided, and (ii) spread the
lien and encumbrance of the Mortgage to encumber the additional collateral which
is more particularly described in EXHIBIT A attached hereto and incorporated
herein ("Additional Collateral").
WHEREAS, Mortgagor and Mortgagee have agreed to amend the terms of the
Mortgage, the Note, and all related loan documents executed by and among or
between Mortgagor and Mortgagee and/or the guarantors of the loan evidenced
thereby (collectively the "Loan Documents") to reflect this Modification; and
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, Mortgagor and Mortgagee mutually covenant
and agree as follows:
1. The foregoing recitals are true and correct and are incorporated by
reference herein.
2. The outstanding principal balance due under the Note as of January 3,
2003 is $112,365.65.
3. As of the date of this Modification, the sum of $4,037,634.35 (ie
$4,150,000.00 less $112,365.65) is available under the Note for
disbursement to Mortgagor.
4. The Maturity Date of the Note is extended to September 30, 2003.
5. The lien and encumbrance of the Mortgage is hereby spread to encumber
the Additional Collateral, and all references in the Mortgage, the Note
and the Loan Documents to the "Real Estate" or the "Property" shall
mean the Existing Security together with the Additional Collateral.
6. Paragraph 9 of the Mortgage is hereby modified to read as follows:
"9. MORTGAGE RELEASES.
9.1 Provided no Event of Default exists under this Mortgage,
Mortgagor shall release portions of the Property from the lien and
encumbrance of this Mortgage upon payment to Mortgagee of a release
price ("RELEASE PRICE") for those portions of the Property requested to
be released equal to the lesser of (1) the outstanding principal
balance of the Note or (2) the greater of (a) 65% of the net sales
proceeds of the parcel being released, or (b) the minimum release price
shown on SCHEDULE C attached hereto and incorporated hereto and
incorporated herein, which Release Price will be applied to the
outstanding principal balance of the Note. For purposes of this
calculation, net sales proceeds shall be equal to the gross sales price
(x) less 3% closing costs and (y) less commissions paid by the Borrower
and (2) less the outstanding Community Development District (CDD) bonds
associated with the parcel being released.
9.2 In the event of a request for a partial release of a
portion of the Property when there is no outstanding balance due and
payable under the Note, the Mortgagee will execute the partial release
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and adjust the funding availability under the Note to (a) maintain a
loan-to-value of collateral ratio of 65%; and (b) to insure that the
minimum release prices for the remaining collateral equals 125% of the
funding available under the loan, and to the extent that any adjustment
in the minimum release prices of the remaining collateral is required,
it will be done prorata based upon the original values of the minimum
release price for the remaining collateral set forth in SCHEDULE C
hereto.
9.3 Mortgagee's counsel shall prepare the form of Partial
Release. All reasonable costs associated with any releases for work
performed to accommodate Borrowers' release requests, including, but
not limited to, recording costs and Mortgagee's attorney's fees (which
fee shall be $150 for each Partial Release) shall be paid by
Mortgagor."
7. SCHEDULE B to the Mortgage is hereby amended to be as amended to
endorse such policy as provided to Mortgagee in connection with this
Modification.
8. Mortgagor acknowledges that this Modification does not constitute a
novation and that all terms and conditions not expressly modified
herein remain in full force and effect.
9. Mortgagor shall be responsible for the payment of all costs incident to
this modification, including attorneys' fees for Mortgagee's counsel
and state recording taxes, documentary stamp tax and intangible tax, if
any, and shall indemnify, defend and hold Mortgagee harmless from and
against all demands or claims for payment of documentary stamp and
intangible taxes due in connection with this Modification, together
with interest and penalties thereon, if any.
10. Mortgagor acknowledges and agrees that there are no offsets or defenses
to payment of the obligation as of this date, and represents that there
are no conditions of default or facts or consequences which will lead
to a default under the obligations due from Mortgagor to Mortgagee
under the Note.
11. All references in the Loan Documents to the "Mortgage" shall be
modified to mean the Mortgage as modified by this Modification.
12. All references to "Loan Documents" in the Loan Documents shall mean
such documents as modified by this Modification.
13. All of Mortgagor's representations, warranties, covenants and
agreements in the Loan Documents are reaffirmed as of the date of this
Modification.
14. Except as hereinabove amended, the Note, the Mortgage and Loan
Documents remain unmodified and in full force and effect.
15. This Modification shall be binding upon the parties hereto and their
respective successors and assigns.
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16. This Modification may be executed in counterparts, each of which shall
be deemed an original of this Agreement whether or not each counterpart
shall have been executed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed and entered into this
Agreement as of the day and year first above written.
Witnesses: MORTGAGOR:
ST. LUCIE WEST DEVELOPMENT COMPANY, LLC,
A FLORIDA LIMITED LIABILITY COMPANY
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Signature
By:
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Print Name: XXXX X. XXXXXXX, President
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Signature
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Print Name:
LAKE XXXXXXX DEVELOPMENT COMPANY, LLC,
A FLORIDA LIMITED LIABILITY COMPANY
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Signature
By:
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Print Name: XXXX X. XXXXXXX, President
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Signature MORTGAGEE:
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Print Name: WACHOVIA BANK, NATIONAL ASSOCIATION
By:
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Signature Name:
----------------------- -----------------------------------
Title:
-----------------------------------
Print Name:
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Signature
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Print Name:
4
STATE OF FLORIDA )
) ss.:
COUNTY OF )
-----------------------------
On the ______ day of January in the year 2003, before me, the
undersigned, a Notary Public in and for said State, personally appeared XXXX X.
XXXXXXX, as President of ST. LUCIE WEST DEVELOPMENT COMPANY, LLC, who is
personally known to me or has presented satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity as President of such company, on
behalf of such entity.
Personally Known _____ OR Produced Identification _____
Type of Identification Produced
--------------------------------------------------------
------------------------------
Notary Public
[Seal]
My Commission Expires:
STATE OF FLORIDA )
) ss.:
COUNTY OF )
-----------------------------
On the ______ day of January in the year 2003, before me, the
undersigned, a Notary Public in and for said State, personally appeared XXXX X.
XXXXXXX, as President of LAKE XXXXXXX DEVELOPMENT COMPANY, LLC, who is
personally known to me or has presented satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity as President of such company, on
behalf of such entity.
Personally Known _____ OR Produced Identification _____
Type of Identification Produced
--------------------------------------------------------
------------------------------
Notary Public
[Seal]
My Commission Expires:
5
STATE OF FLORIDA )
) ss.:
COUNTY OF ___________ )
On the ______ day of January, in the year 2003, before me, the
undersigned, a Notary Public in and for said State, personally appeared
_____________________, as ________________ of WACHOVIA BANK, NATIONAL
ASSOCIATION, who is personally known to me or has presented satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity as President of
such company, on behalf of such entity.
Personally Known _____ OR Produced Identification _____
Type of Identification Produced
--------------------------------------------------------
------------------------------
Notary Public
[Seal]
My Commission Expires:
6
EXHIBIT "A"
LEGAL DESCRIPTION OF ADDITIONAL COLLATERAL
SCHEDULE "C"
RELEASE PRICES
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NEW COLLATERAL APPRAISED VALUE/ MINIMUM RELEASE
CONTRACT PRICE
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-------------------------------------- ------ ----------------------------- ------ ------------------------------
1) 60 acres - multi family site
(Parcel 11, Parcel 20, Lot 4) under $3,000,000 $1,575,712
contract to Homes by Xxxxxxx, Ltd.
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2) 7.94 acres - commercial site (a
portion of Parcel 20, Lot 6) under
contract to Family Entertainment $1,901,786 $1,066,738
Center at St. Lucie West.
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3) 4 acres - commercial site (Parcel
7 ACLF) under contract to Senior
Housing Ventures, Inc. $300,000 $189,150
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Existing Collateral
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4) Vineyards - 65 lots $2,659,097 $1,109,550 (Total) or
$17,070 per lot
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-------------------------------------- ------ ----------------------------- ------ ------------------------------
5) Lake Xxxxxxx - 35 lots $1,181,250 $875,000 (Total) or $25,000
per lot
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6) Lake Forest - 79 lots $2,264,006 $352,568 (Total) or $4,463
per lot
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-------------------------------------- ------ ----------------------------- ------ ------------------------------
Total $11,306,139 $5,168,718
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Proposed Loan Amount: $4,150,000
CDD Bonds $3,204,103
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Total Debt $7,354,103
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Value (from above) $11,306,139
LOAN-TO-VALUE RATIO 65%
Minimum Release (above) $5,168,718
Proposed Loan $4,150,000
MINIMUM RELEASE TO LOAN AMOUNT 125%
