JS 10/30/97
Exhibit 10.10
This Instrument Prepared By:
Xxxxx Xxxxxx, Xx., Esq.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
MORTGAGE AND LOAN
MODIFICATION AND EXTENSION AGREEMENT
(Revolving Loan)
THIS MORTGAGE AND LOAN MODIFICATION AND EXTENSION AGREEMENT (the
"Extension Agreement"), made as of this 1st day of July, 1997, by ORIOLE HOMES
CORP., a Florida corporation (the "Mortgagor"), having its principal place of
business at Suite 200, 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx
00000-0000, to OHIO SAVINGS BANK, a federal savings bank, f/k/a Ohio Savings
Bank, F.S.B. and f/k/a Ohio Savings Bank, an Ohio corporation (the "Mortgagee"),
having its principal place of business at 200 Ohio Savings Plaza, 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000;
NOTE TO RECORDER: IN ACCORDANCE WITH
PLEASE CROSS REFERENCE TO:
CHAPTER 199.143 FLORIDA STATUTES,
OFFICIAL RECORDS BOOK 7800,
INTANGIBLE TAX IS PAID HEREIN ON
PAGE 1590, PUBLIC RECORDS OF
$________________ OF INDEBTEDNESS.
PALM BEACH COUNTY, FLORIDA.
DOCUMENTARY STAMPS AND INTANGIBLE TAX ON THE FUTURE ADVANCE NOTE ($5,000,000)
ARE AFFIXED TO THE AGREEMENT RECORDED IN OFFICIAL RECORDS BOOK 9085, PAGE 547,
PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. DOCUMENTARY STAMPS AND INTANGIBLE
TAX ON THE FUTURE ADVANCE NOTE ($2,000,000) AND INTANGIBLE TAX ON THE DEMAND
NOTES ($3,000,000) ARE AFFIXED TO THE AGREEMENT RECORDED IN OFFICIAL RECORDS
BOOK 8897, PAGE 53, OF SAID PUBLIC RECORDS. DOCUMENTARY STAMPS ON THE DEMAND
NOTES ($3,000,000) ARE AFFIXED THERETO. DOCUMENTARY STAMPS AND
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INTANGIBLE TAX ON THE ORIGINAL AMOUNT OF THE ORIGINAL NOTE ($10,000,000) ARE
AFFIXED TO THE MORTGAGE RECORDED IN OFFICIAL RECORDS BOOK 7800, PAGE 1590 OF
SAID PUBLIC RECORDS.
W I T N E S E T H:
------------------
WHEREAS, in consideration for a revolving line of credit in the maximum
amount of Ten Million Dollars ($10,000,000.00) (the "Loan") made by Mortgagee to
Mortgagor, Mortgagor has executed and delivered to Mortgagee a certain Revolving
Mortgage Note dated July 13, 1993, in the maximum principal amount of the Loan
as aforesaid (the "Original Note");
WHEREAS, the Original Note is secured by, among other things, a Mortgage
and Security Agreement (Revolving Loan) dated July 13, 1993, from Mortgagor to
Mortgagee and recorded on July 16, 1993, in Official Records Book 7800, Page
1590, of the Public Records of Palm Beach County, Florida (the "Mortgage"),
which encumbers the land described on Exhibit A attached thereto (the "Original
Land");
WHEREAS, by Mortgage, Assignment and Financing Statement Spreader
Agreement dated May 31, 1995, from Mortgagor to Mortgagee recorded on June 6,
1995, in Official Records Book 8776, Page 262, of the Public Records of Palm
Beach County, Florida, the lien, charge, encumbrance, operation and effect of
the Mortgage was expanded and spread so as to encumber and effect the land
described in Schedule A attached thereto (the "First Additional Land");
WHEREAS, by Future Advance, Mortgage, Assignment and Financing Statement
Extension, Modification and Spreader Agreement dated August 23, 1995, from
Mortgagor to Mortgagee recorded on August 30, 1995, in Official Records Book
8897, Page 53, of the Public Records of Palm Beach County, Florida (i) the lien,
charge, encumbrance, operation and effect of the Mortgage was expanded and
spread so as to encumber and effect the land described in Schedule A attached
thereto (the "Second Additional Land"); (ii) the maturity date of the Mortgage
was extended to July 1, 1997; and (iii) the Mortgage was modified to secure an
additional $5,000,000 of indebtedness evidenced by a $1,000,000 Demand Revolving
Promissory Note dated August 8, 1995, a $2,000,000 Demand Revolving Promissory
Note dated August 15, 1995 and a $2,000,000 Revolving Future Advance Mortgage
Note dated August 23, 1995 (collectively, the "August Notes") [the Original Note
and the August Notes were consolidated by a $15,000,000 Consolidated Revolving
Mortgage Note dated August 23, 1995 (the "First Consolidated Note")];
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WHEREAS, by Future Advance, Mortgage, Assignment and Financing Statement
Extension, Modification and Spreader Agreement dated January 12, 1996, from
Mortgagor to Mortgagee recorded on January 17, 1996, in Official Records Book
9085, Page 547, of the Public Records of Palm Beach County, Florida (i) the
lien, charge, encumbrance, operation and effect of the Mortgage was expanded and
spread so as to encumber and effect the land described in Schedule A attached
thereto (the "Third Additional Land"); and (ii) the Mortgage was modified to
secure an additional $5,000,000 of indebtedness evidenced by a $5,000,000
Revolving Future Advance Mortgage Note dated January 12, 1996 (the "Future
Advance Note") [the Future Advance Note and the First Consolidated Note were
consolidated by a $20,000,000 Consolidated Revolving Mortgage Note dated January
12, 1996 (the "Second Consolidated Note")];
WHEREAS, Mortgagor and Mortgagee have agreed that Mortgagee will reduce
the Loan, as heretofore increased by the August Notes and the Future Advance
Note and consolidated by the First Consolidated Note and the Second Consolidated
Note (the "Consolidated Loan"), to the maximum amount of Ten Million Dollars
($10,000,000.00) (the "Reduced Consolidated Loan") such Reduced Consolidated
Loan being evidenced by a $10,000,000 Renewal Amended and Restated Consolidated
Revolving Mortgage Note of even date herewith (the "Third Consolidated Note"),
executed and delivered to Mortgagee by Mortgagor and secured by the Mortgage;
and Mortgagor and Mortgagee have agreed to extend the maturity date of the
Mortgage, pursuant to the terms and conditions of that certain Revolving Loan
Agreement dated July 13, 1993 between Mortgagor and Mortgagee as amended by
First Amendment to Revolving Loan Agreement dated August 23, 1995 and Second
Amendment to Revolving Loan Agreement of even date herewith (collectively, the
"Agreement").
NOW THEREFORE, in consideration of the Reduced Consolidated Loan, the
premises, and Ten Dollars ($10.00) and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound, Mortgagor and Mortgagee hereby covenant and agree as follows:
1. Recitals. The aforementioned recitals are true and correct and
are hereby incorporated by this reference.
2. Existing Indebtedness. The indebtedness evidenced by the Original Note,
the August Notes and the Future Advance Note, as consolidated by the First
Consolidated Note and the Second Consolidated Note, was incurred in good faith
for value received and as of the date hereof the unpaid balance of the Second
Consolidated Note is $100,000.00, and the Mortgagor has no defenses,
counterclaims or offsets thereto.
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3. Reduction of Consolidated Loan. Mortgagor and Mortgagee have agreed to
reduce the Consolidated Loan and in furtherance thereof Mortgagor has executed
and delivered to Mortgagor the Third Consolidated Note which replaces and
supersedes the Second Consolidated Note. From and after the date of this
Extension Agreement the maximum amount of the revolving line of credit evidenced
by the Third Consolidated Note and secured by the Mortgage, as hereby modified
and extended, shall never exceed Ten Million Dollars ($10,000,000.00) (U.S.).
4. Extension and Modification. Clause A on the first page of the Mortgage
is hereby superseded, restated and replaced by the following:
A. In consideration for a revolving line of credit in the maximum amount
of Ten Million Dollars ($10,000,000.00) (U.S.) (the "Loan") made by Mortgagee to
Borrower, Borrower has executed and delivered to Mortgagee a certain Renewal
Amended and Extended Consolidated Revolving Mortgage Note dated as of July 1,
1997, in the maximum principal amount of the Loan as aforesaid, payable in full
as to principal and accrued interest on June 30, 1999 (the "Note");
5. Definitions. (a) All references in the Mortgage and in that certain
Assignment of Rents and Leases and Agreements Affecting Real Estate dated July
13, 1993, from Mortgagor to Mortgagee and recorded on July 16, 1993, in Official
Records Book 7800, Page 1617, of the Public Records of Palm Beach County,
Florida to the "Note" shall be construed to
refer to the Third Consolidated Note.
(b) Capitalized terms not defined herein shall have the same
meaning as in the Mortgage or the Agreement, as the case may be.
6. Representations and Warranties. Mortgagor represents and warrants that:
(a) Mortgagor has full power, authority and legal right to execute this
Modification Agreement and to keep and observe all of the terms of this
Modification Agreement on Mortgagor's part to be observed or performed, and
that, as of the date hereof (i) the warranties and representations of Mortgagor
contained in the Agreement are true, correct and complete in all material
respects; (ii) all the covenants, terms and conditions of the Agreement remain
satisfied; and (iii) no Event of Default, or event which upon the lapse of time,
the giving of notice, or both, could become an Event of Default, has occurred
under the Agreement.
(b) The aggregate principal obligation of the Mortgagor secured by the
Mortgage is Ten Million and no/100 Dollars ($10,000,000.00) (U.S.) which sum (or
such lesser amount as shall have been actually borrowed by
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Mortgagor from Mortgagee) shall be repaid in accordance with the terms of the
Third Consolidated Note.
(c) Mortgagor has not availed, is not availing and has no intention to
avail itself of the right and opportunity available to it under Chapter
697.04(1)(b) Florida Statutes to file of record a notice limiting the maximum
principal amount that may be secured under the future advance provisions of the
Mortgage. Mortgagor makes this representation and warranty knowing that
Mortgagee shall rely upon the same in consideration of the terms and conditions
agreed to herein.
7. Ratification of Loan Documents. Mortgagor acknowledges that the Third
Consolidated Note, the Mortgage, as amended hereby, and any other document or
instrument related thereto are valid and binding; and there are no defenses, set
offs or counterclaims thereto; nothing herein invalidates or shall impair or
release any covenant, condition, agreement or stipulation in the Loan Documents;
and Mortgagor shall perform and comply with and abide by each of the covenants,
agreements, conditions and stipulations of the Loan Documents as amended hereby.
8. Limited Modification. Except to the limited extent expressly set forth
herein, all other terms and provisions contained in the Mortgage remain in full
force and effect, and nothing herein and nothing done pursuant hereto shall
affect or be construed to affect the lien, charge and encumbrance of, or
warranty of title in the Mortgage, nor the priority thereof over other liens,
charges, encumbrances or conveyances, and the Mortgaged Property (as that term
is defined in the Mortgage) shall remain in all respects subject to the lien,
charge and encumbrance of the Mortgage. This Modification Agreement constitutes
a modification or amendment, and not a novation.
9. Miscellaneous.
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(a) Recording. Mortgagor shall promptly cause this Modification
Agreement to be filed, registered or recorded in such manner and in such places
as may be required by any present or future law in order to publish notice of
and fully to protect the lien of the Mortgage upon, and the interest of
Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing,
administration and recording fees, and all expenses incident to the preparation,
execution and acknowledgment of this Modification Agreement, and all Federal,
state, county and municipal taxes, duties, assessments and charges now or
hereafter arising out of or in connection with the filing, registration,
recording, execution and delivery of this Modification Agreement, including
without limitation any and all documentary stamps and/or intangible taxes.
Mortgagor agrees to hold
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harmless and indemnify Mortgagee against any liability incurred by reason of the
imposition of any such tax, duty, assessment or charge. Mortgagor shall pay such
sums immediately upon receipt of notice of such amounts from the authority to
which they are due and payable or from Mortgagee or its assigns. In the event
Mortgagor fails to pay said sums, Mortgagee or its assignee may at its option
pay such taxes and/or purchase and affix such documentary stamps. Any such
payment by Mortgagee or its assignee shall be added to the indebtedness
evidenced by the Second Consolidated Note and shall bear interest from the date
advanced to the date of recovery at a rate equal to the lesser of five percent
(5%) per annum higher than the rate of interest then accruing in accordance with
the provisions of the first paragraph of the Second Consolidated Note or the
maximum rate permissible under Florida Law.
(b) Severability. If any one or more of the provisions of this
Modification Agreement is held to be invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision or provisions in every other respect and of the remaining provisions
of this Modification Agreement shall not be in any way impaired, and each term
or provision shall be construed to be legal, valid, binding and enforceable to
the maximum extent permitted by law.
(c) Survival of Covenants, Representations and Warranties. All
warranties, representations and covenants made by Mortgagor herein or in any
certificate or other instrument delivered by it or on its behalf under this
Modification Agreement shall be considered to have been relied upon by Mortgagee
and shall survive regardless of any investigation made by Mortgagee or on its
behalf.
(d) Headings. Paragraph headings have been inserted in this
Modification Agreement as a matter of convenience of reference only; such
paragraph headings are not part of this Modification Agreement and shall not be
used in the interpretation of this Modification Agreement.
(e) Governing Law. This Modification Agreement shall be governed
by and construed in accordance with the laws of the State of Florida.
(f) Further Instruments. Mortgagor agrees from time to time, as
may be reasonably required by Mortgagee, to execute and deliver such further
instruments and documents and do all matters and things which may be convenient
or necessary to more effectively and completely carry out the intention
herewith.
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(g) Conflicts. In the event of any conflict between the provisions
hereof and of the Mortgage, the provisions hereof shall govern and control.
THE MORTGAGOR AND MORTGAGEE EACH WAIVES THE RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, ANY ASPECT OF THE
TRANSACTION IN CONNECTION WITH WHICH THIS DOCUMENT IS BEING GIVEN OR ANY
DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH SUCH TRANSACTION. THIS WAIVER
IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY MORTGAGOR AND MORTGAGEE AND
THE MORTGAGOR AND MORTGAGEE EACH ACKNOWLEDGES THAT NO ONE HAS MADE ANY
REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO
MODIFY OR NULLIFY ITS EFFECT. THE MORTGAGOR AND MORTGAGEE EACH FURTHER
ACKNOWLEDGES HAVING BEEN REPRESENTED IN CONNECTION WITH THE TRANSACTION WITH
RESPECT TO WHICH THIS DOCUMENT IS BEING GIVEN AND IN THE MAKING OF THIS WAIVER
BY INDEPENDENT LEGAL COUNSEL, SELECTED BY ITS OWN FREE WILL, AND THAT IT HAS HAD
THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH SUCH COUNSEL. THE MORTGAGOR AND
MORTGAGOR EACH ACKNOWLEDGES HAVING READ AND UNDERSTOOD THE MEANING AND
RAMIFICATIONS OF THIS WAIVER PROVISION.
IN WITNESS WHEREOF, the Mortgagor has caused this Modification Agreement
to be executed as of the date first above written.
MORTGAGOR:
Signed and Acknowledged
in the Presence of:
ORIOLE HOMES CORP.,
a Florida corporation
-----------------------------
Name Printed:________________
By:_________________________________
Xxxxxxx X. Xxxx, Chairman of the
Board and Chief Executive Officer
-----------------------------
Name Printed:________________
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STATE OF FLORIDA )
)SS:
COUNTY OF PALM BEACH )
Before me, a Notary Public in and for said County and State, on this day
of November, 1997, personally appeared the above-named Oriole Homes Corp., a
Florida corporation, by Xxxxxxx X. Xxxx, its Chairman of the Board and Chief
Executive Officer, who acknowledged to me that he did sign the foregoing
instrument on behalf of said corporation, and that such signing was his free act
and deed as such officer, and the free act and deed of said corporation. Xxxxxxx
X. Xxxx is personally known to me.
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Print Name: (SEAL)
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Notary Public, State of Florida at Large
My Commission Expires: _________________________
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