This Instrument Prepared By: Record and Return to: Rafael G. Moreno, Esquire ADORNO & YOSS, LLP
Exhibit
10.134
This
Instrument Prepared By:
Record
and Return to:
Xxxxxx
X.
Xxxxxx, Esquire
XXXXXX
& XXXX, LLP
0000
Xxxxx xx Xxxx Xxxx., Xxxxx 000
Xxxxx
Xxxxxx, Xxxxxxx 00000
AND
FUTURE ADVANCE CERTIFICATE
THIS
FOURTH MORTGAGE MODIFICATION AGREEMENT AND FUTURE ADVANCE CERTIFICATE (this
“Agreement”) is made as of January 31, 2007, by between XXXXX CREEK ACQUISITION
COMPANY, LLC, a Florida limited liability company, having offices at 000
Xxxxxxxx Xxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxx 00000 ("Mortgagor" or “Borrower”)
and STANFORD INTERNATIONAL BANK, LTD.,
a
company organized and existing under the laws of Antigua,
having
an office at Xx. 00, Xxxxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxx, Xxxx Xxxxxx
("Mortgagee" or “Lender”).
WITNESSETH:
A.
On
July
8, 2005 Mortgagor executed and delivered in favor of Mortgagee: (i) a Mortgage
and Security Agreement (the "Mortgage"), encumbering certain property situate
in
Osceola County, Florida (the "Property"), legally described in Exhibit “A”
attached hereto and made a part hereof, which was recorded in Official Records
Book 2855, at Page 1243 of the Public Records of Osceola County, Florida; (ii)
a
Assignment of Leases, Rents and Profits, recorded
in Official Records Book 2855, Page 1280, of the Public Records of Osceola
County, Florida (the “Assignment”); and (iii) an UCC-1 Financing Statement
recorded in Official Records Book 2855, Page 1291, of the Public Records of
Osceola County, Florida (the “Financing Statement”) for the purpose of securing
a loan (the “Loan”) in the original principal amount of Seven Million One
Hundred Fifty Thousand and No/100 Dollars ($7,150,000.00) evidenced by that
certain Promissory Note dated July 8, 2005 executed by Mortgagor in favor of
the
Mortgagee (the "Original Note").
B.
As
additional security for the Original Note, Xxxxxxx X. Xxxxxx and American
Leisure Holdings, Inc., a Nevada corporation (collectively, the “Guarantor”)
made, executed and delivered to the Mortgagee that certain Irrevocable and
Unconditional Guaranty of Payment (the “Guaranty”) dated July 8, 2005, in favor
of the Mortgagee, wherein the Guarantor guaranteed the repayment of all sums
Original Note and Mortgage.
C.
On
January 5, 2006 Borrower and Guarantor requested that the Mortgagee make an
Eight Hundred Fifty Thousand and No/100 Dollar ($850,000.00) future advance
loan
(the “First Future Advance Loan”) to the Borrower, which First Future Advance
Loan is (a) evidenced by a Renewed, Amended and Increased Promissory Note (the
“First Future Advance Note”) dated as of January 5, 2006, executed by the
Borrower and made payable to the order of Lender, in the face amount of Eight
Million and No/100 Dollars ($8,000,000.00), which First Future Advance Note
represents a consolidation, amendment, restatement and renewal of the Original
Note, and (b) secured by: (i) the Mortgage and the Assignment as amended by
that
certain Mortgage Modification Agreement and Future Advance Certificate
made as of January 5, 2006 and recorded on January 18, 2006 in
Official Records Book 3034, at Page 2915 of the Public Records of Osceola
County, Florida (the “First Mortgage Modification Agreement”); (ii) an UCC-1
Financing Statement recorded in Official Records Book 3034, Page at 2921, of
the
Public Records of Osceola County, Florida (the “Second Financing Statement”);
and (iii) an UCC-3 Financing Statement Amendment recorded in Official Records
Book 3034, at Page 2926, of the Public Records of Osceola County, Florida (the
“Financing Statement Amendment”).
D.
On
November 22, 2006 Borrower and Guarantor requested that the Mortgagee make
a
Four Million Three Hundred Thousand and No/100 Dollar ($4,300,000.00) future
advance loan (the “Second Future Advance Loan”) to the Borrower, which Second
Future Advance Loan is (a) evidenced by a Second Renewed, Amended and Increased
Promissory Note (the “Second Future Advance Note”) dated as of November 22,
2006, executed by the Borrower and made payable to the order of Lender, in
the
face amount of Twelve Million Three Hundred Thousand and No/100 Dollars
($12,300,000.00), which Second Future Advance Note represents a consolidation,
amendment, restatement and renewal of the Original Note as renewed, amended
and
increased by the First Future Advance Note, and (b) secured by: (i) the Mortgage
and the Assignment as amended by the First Mortgage Modification Agreement,
and
that certain Second Mortgage Modification Agreement and Future Advance
Certificate made as of November 22, 2006 and recorded on December 1, 2006 in
Official Records Book 3345, at Page 2054 of the Public Records of Osceola
County, Florida (the “Second Mortgage Modification Agreement”); (ii) an UCC-1
Financing Statement recorded in Official Records Book 3034, Page at 2921, of
the
Public Records of Osceola County, Florida (the “Second Financing Statement”);
and (iii) an UCC-3 Financing Statement Amendment recorded in Official Records
Book 3034, at Page 2926, of the Public Records of Osceola County, Florida (the
“Financing Statement Amendment”).
E.
On
December 22, 2006 Borrower and Guarantor requested that the Mortgagee make
an
additional future advance loan to the Borrower in the amount of a One Million
One Hundred Twenty Thousand and No/100 Dollar ($1,120,000.00) maturing on
January 31, 2007 (the “Third Future Advance Loan”), which Future Advance Loan is
(a) evidenced by a Third Renewed, Amended and Increased Promissory Note (the
“Third Future Advance Note”) dated as of December 22, 2006, executed by the
Borrower and made payable to the order of Lender, in the face amount of Thirteen
Million Four Hundred Thirty Thousand and No/100 Dollars ($13,430,000.00), which
Third Future Advance Note represents a consolidation, amendment, restatement
and
renewal of the Second Future Advance Note and (b) secured by: (i) the Mortgage
and the Assignment as amended by the First Mortgage Modification Agreement,
the
Second Mortgage Modification and Future Advance and that certain Third Mortgage
Modification Agreement and Future Advance Certificate made as of December 22,
2006 and recorded in the Public Records of Osceola County, Florida (the “Third
Mortgage Modification Agreement”).
F.
On
December 31, 2006 Borrower and Mortgagee entered into that certain Amendment
No.
1 to $13,420,000 Renewed, Amended and Increased Promissory Note and extended
the
Initial Indebtedness Maturity Date, as such term is defined in the Second Future
Advance Note (the “Note Amendment”).
G.
Borrower
and Guarantor have further requested that the Mortgagee make an additional
future advance loan to the Borrower in the amount of a One Million Eight Hundred
Eighty Thousand and No/100 Dollar ($1,880,000.00) (the “Fourth Future Advance
Loan”), which Fourth Future Advance Loan is (a) evidenced by a Fourth Renewed,
Amended and Increased Promissory Note (the “Fourth Future Advance Note”) dated
as of even date herewith, executed by the Borrower and made payable to the
order
of Lender, in the face amount of Fifteen Million Three Hundred Thousand and
No/100 Dollars ($15,300,000.00), which Fourth Future Advance Note represents
a
consolidation, amendment, restatement and renewal of the Third Future Advance
Note, as amended by the Note Amendment.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, and to
induce Mortgagee to agree to the modifications, it is agreed by and between
Mortgagor and Mortgagee as follows:
1.
The
foregoing recitals are true and correct and hereby incorporated into this
Agreement and made a material part hereof by this express reference. The Fourth
Future Advance Loan constitutes a future advance under Section 11.18 of the
Mortgage, as amended (the “Amended Mortgage”).
2.
Sections
11.18 and 11.19 of the Amended Mortgage are hereby modified to provide that
the
total amount of indebtedness secured by the Amended Mortgage may be increased
or
decreased from time to time, but the total unpaid balance so secured at any
one
time shall not exceed the maximum principal amount equal to twice the original
principal sum evidenced by the Fourth Future Advance Note plus interest thereon
and any disbursements made under the Amended Mortgage or any of the Loan
Documents for the payment of Impositions, levies, insurance, or otherwise,
with
interest on such disbursements.
3. Mortgagor
hereby represents, warrants and covenants to and with Mortgagee that no default
or event of default exists under the Original Note, the First Future Advance
Note, the Second Future Advance Note, the Third Future Advance Note, the Amended
Mortgage, the Assignment, or any of the other Loan Documents, as defined herein
below, and that Mortgagor has no claims, offsets or defenses to its obligations
there under. Mortgagor further represents that it is the owner of the
Property.
4.
Mortgagor
acknowledges and confirms that (i) the Amended Mortgage constitutes a valid
and
binding lien on the Property and (ii) the Assignment and Financing Statements
constitute valid and binding security interests in the property described
therein.
5.
The
lien
of the Amended Mortgage and Assignment secures payment of the indebtedness
(the
"Indebtedness") of the Fourth Future Advance Note and the performance of all
obligations under all documents, and
all
modifications, extensions, substitutions, and replacements thereof, executed
in connection with the loans evidenced and/or securing the Original Note, the
First Future Advance Note, the Second Future Advance Note, the Third Future
Advance Note, and the Fourth Future Advance Note (the "Loan
Documents").
6.
Mortgagor
hereby reaffirms,
re-acknowledges and ratifies each and every of the terms, covenants and
conditions of the Loan Documents, and agrees to remain bound thereby and does
hereby assume and agree to pay the Indebtedness and all interest and other
charges contained in the Loan Documents.
7.
It
is the
intention of the parties hereto that nothing herein shall constitute a novation
of the indebtedness secured by the Mortgage and such indebtedness shall remain
in full force and effect. In addition, the terms of this Agreement shall not
operate to release, alter, impair, diminish, affect or subordinate the lien,
or
the priority of the lien, of the Mortgage, the Assignment, or any other document
securing or evidencing Mortgagor's obligation and indebtedness to
Mortgagee.
8. To
the
extent of any inconsistency or conflict of any provisions contained in the
Amended Mortgage, this Agreement, or other Loan Document, the provisions or
any
portion thereof, which in the sole judgment of the Mortgagor provide for the
greatest protection or otherwise operate in the Mortgagor’s best interest shall
govern.
9.
Mortgagor
acknowledges that as of the date of this Agreement, the Mortgagor has no
defenses, counterclaims or claims to rights of offset with regard to its
obligations under the Loan Documents with respect to the validity and
enforceability of any collateral or security interests held by the Mortgagee
evidenced or secured by the Loan Documents.
10. This
Agreement shall be binding upon and inure to the benefit of the Mortgagor,
Mortgagee and their respective heirs, personal representatives, successors
and
assigns, and the terms and provisions hereof as well as the representations
and
warranties contained herein shall survive the execution and delivery
hereof.
11.
MORTGAGEE
AND MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON,
OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS AGREEMENT AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE
PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR MORTGAGEE ENTERING INTO
THIS AGREEMENT WITH MORTGAGOR.
IN
WITNESS WHEREOF, Mortgagor has caused its name to be hereunto affixed the day
and year first above written.
| Signed,
sealed and delivered
in
the presence of:
/s/
Xxxxx
Xxxxxxxx
Print
Name: Xxxxx
Xxxxxxxx
/s/
Xxxxxxx
Xxxxxxx
Print
Name: Xxxxxxx
Xxxxxxx
|
MORTGAGOR:
XXXXX
CREEK ACQUISITION, LLC
a
Florida limited liability company
By:
/s/ Xxxxxxx X.
Xxxxxx
Xxxxxxx
X. Xxxxxx, its Manager
(CORPORATE
SEAL)
|
STATE
OF
FLORIDA
COUNTY
OF
ORANGE
The
foregoing instrument was acknowledged before me this 2nd day of February,
2007, by Xxxxxxx X. Xxxxxx, as Manager of Xxxxx Creek Acquisition Company,
LLC,
a Florida limited liability company, on behalf of the company, and who is
personally known to me or has produced _______________________________________
as identification.
/s/ XX
Xxxxxx
Notary
Public, State of Florida
XX
Xxxxxx
Printed
Name of Notary Public:
Commission# DD459074
EXHIBIT
“A”
LEGAL
DESCRIPTION
PARCEL
ONE:
LOTS
3 AND 4, IN THE SOUTHWEST 1/4 OF SECTION 2, TOWNSHIP 25 SOUTH, RANGE 27 EAST,
OSCEOLA COUNTY, FLORIDA; LESS THAT PART OF SAID LOT 3 LYING SOUTH OF A LINE
1819.04 FEET NORTH OF AND PARALLEL WITH THE SOUTH BOUNDARY OF SAID SOUTHWEST
1/4, ALL IN THE MAP OF FLORIDA FRUIT & TRUCK LAND CO. SUBDIVISION, ACCORDING
TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK "B" PAGE 68, OF THE PUBLIC RECORDS
OF OSCEOLA COUNTY, FLORIDA.
PARCEL
TWO:
THE
WEST 1/2 OF THE EAST 1/2 OF THE SOUTHWEST 1/4 OF SECTION 2, TOWNSHIP 25 SOUTH,
RANGE 27 EAST, LESS AND EXCEPT THE SOUTH 1336.22 FEET THEREOF, AND LESS THE
NORTH 435.6 FEET OF THE WEST 100 FEET THEREOF, ALL LYING AND BEING IN OSCEOLA
COUNTY, FLORIDA.
TOGETHER
WITH THE FOLLOWING EASEMENTS FOR INGRESS AND EGRESS:
Parcel
A:
That
portion of the following described land, lying North of Xxxxx Xxxx Xx. 000;
from
the Southwest corner of the West 1/2 of the East 1/2 of the Southwest 1/4 of
Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx, run North
89°43'13"
East, along the South line of said Section 2, 305.00 feet to the Point of
Beginning; run thence North 00°01'20" East, parallel to the West line of said
West 1/2 of the East 1/2 of the Southwest 1/4, 850.00 feet; run thence North
89°43'13" East, 50.00 feet; run thence South 00°01'20" West 850.00 feet to the
South line of said Section 2; run thence South 89°43'13" West, 50.00 feet to the
Point of Beginning.
Parcel
B:
A
strip of land 25.0 feet in width each side of the following described line:
From
the Southwest corner of the West 1/2 of the East 1/2 of the Southwest 1/4 of
Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx, run North
89°43'13" East, along the South line of Section 2, 330.0 feet; run thence North
00°01'20" East, parallel to the West line of said West 1/2 of the East 1/2 of
the Southwest 1/4, 850.0 feet to the Point of Beginning; continue North
00°01'20" East, 114.39 feet to the Point of a Curve of a 75.00 foot radius curve
to the left, having a central angle of 68°01'20"; run thence along said curve,
89.04 feet to the Point of Tangent; run thence North 68°00'00" West, 198.67 feet
to the Point of a Curve of a 110.0 foot radius curve to the right, having a
central angle of 68°01'20"; run thence along said curve, 130.59 feet to the
Point of Tangent; run thence North 00°01'20" East, 124.34 feet to the end of
said line.
TOGETHER
WITH all rights to Signage Easement reserved in that certain Deed recorded
at
Official Records Book 550, Page 777, of the public records of Osceola County,
Florida.
PARCEL
THREE:
Begin
at the Southeast corner of the Northwest 1/4 of Section 2, Township 25 South,
Range 27 East, Osceola County, Florida, and run N 00°26'22" E, along the East
Boundary of said Northwest 1/4, 500.02 feet; thence run S 89°51'41" W, 819.46
feet; thence S 00°01'20" W, 450.00 feet; thence N 89°51'41" E, along a line
50.00 feet North of and parallel with the South Boundary of said Northwest
1/4
of said Section 2, 296.13 feet to a point of a Curvature of a non-tangent curve
concave Easterly, having a radius of 840.00 feet; thence Southeasterly along
said curve to a point on the South line of said Northwest 1/4 of said Section
2,
lying S 89°51'41" W, 512.10 feet from said Point of Beginning; run thence N
89°51'41" E, 512.10 feet to the Point of Beginning.
