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EXHIBIT 10.8(d)
THE MORTGAGE MODIFIED HEREBY SECURES A REVOLVING LINE OF CREDIT.
CONTEMPORANEOUSLY HEREWITH, THE MORTGAGEE HAS MADE ADVANCES IN THE
AMOUNT OF $5,625,000.00 AND $1,069,760.00, ON WHICH FLORIDA INTANGIBLE
TAX HAS BEEN COMPUTED AND IS PAID HEREWITH. ADDITIONAL INTANGIBLE TAX
WILL BE PAID ON ALL FUTURE DISBURSEMENTS SECURED HEREBY.
MORTGAGE MODIFICATION AND SPREADING AGREEMENT
AND NOTICE OF FUTURE ADVANCE
THIS MORTGAGE MODIFICATION AND SPREADING AGREEMENT AND NOTICE OF
FUTURE ADVANCE (the "Agreement"), is made and entered into as of the 15th day
of January, 1997, by and between:
(i) THE XXXXX COMPANIES, INC., a Florida corporation, with
mailing address at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxxxx,
Xxxxxxx 00000 (the "Mortgagor"), to and in favor of
(ii) BANK UNITED, formerly known as Bank United of Texas FSB,
a federal savings bank with mailing address at 0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxxx. Xxxxx 00000 (the 'Mortgagee").
WITNESSETH:
WHEREAS, pursuant to that certain Construction Line of Credit Loan
Agreement dated as of March 13, 1996, Mortgagor executed and delivered a
revolving promissory note (the "$10,000,000.00 Note") payable to the order of
the Mortgagee in the face principal amount of Ten Million Dollars
($10,000,000.00), which promissory note is secured, in part, by that certain
Mortgage and Security Agreement dated as of March 13, 1996, made by
the Mortgagor to and in favor of the Mortgagee, as recorded in Official
Records Book 24624, Page 556, Public Records of Broward County, Florida, as
amended by that certain Mortgage Spreading Agreement dated as of December 30,
1996, between the Mortgagor and the Mortgagee, as recorded in Official Records
Book 25846, Page 596, Public records of Broward County, Florida (as amended, the
"Mortgage").
WHEREAS, pursuant to that certain Lot Acquisition Loan Agreement of
even date herewith between the Mortgagor and the Mortgagee, the Mortgagee made
an additional loan to the Mortgagor in the amount of Five Million Six Hundred
Twenty Five Thousand Dollars ($5,625,000.00), to be secured as a future advance
under the terms of the Mortgage, as evidenced by that certain Promissory Note
(the "$5,625,000.00 Note") of even date herewith made by the Mortgagor payable
to the order of the
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Mortgagee in the face principal amount of Five Million Six Hundred Twenty Five
Thousand Dollars ($5,625,000.00), and the parties hereto agreed to modify the
Mortgage, all as provided herein.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Mortgagor and Mortgagee hereby amend the Mortgage as follows:
1. Definitions. All capitalized terms used herein, unless
otherwise defined, shall have their same respective meanings herein as defined
in the Mortgage.
2. Additional Land. The Mortgagor hereby grants, bargains, sells,
conveys, assigns, transfers, mortgages, pledges, delivers, sets over, warrants,
confirms and hypothecates to the Lender, and grants Lender a security interest
in all those certain lots, pieces, or parcels of land lying and being in
Broward County, Florida, together with the buildings and improvements now or
hereafter situated thereon, said land being legally described as follows:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF
(the "Additional Land") as security for the payment of the Note, together with
interest thereon as provided therein, and all other obligations and
indebtedness of the Mortgagor to the Lender, whether now existing or hereafter
arising and all of the obligations of the Mortgagor to the Lender under the
Loan Documents, subject to each of the terms, covenants and conditions
contained in the Mortgage. Whenever reference is made in the Mortgage to the
term "Land", the same shall be deemed to include, without limitation, the
Additional Land.
3. Notice of Future Advance. Notice is hereby given of a future
advance under the Mortgage in the amount of Five Million Six Hundred Twenty
Five Thousand Dollars ($5,625,000.00), as evidenced by the $5,625,000.00 Note,
the proceeds of which are to be disbursed in accordance with the terms,
covenants and conditions contained in the Lot Acquisition Loan Agreement. The
$5,625,000.00 Note shall be secured by the Mortgage to the same extent, and
with the same priority, as if said promissory note had been executed and
delivered by the Mortgagor on the date of the Mortgage.
4. Note. Whenever reference is made herein or in the Mortgage to
the term "Note", the same shall be deemed to collectively mean (i) the
$10,000,000.00 Note and (ii) the $5,625.000.00 Note.
4. Loan Agreement. Whenever reference is made in the Mortgage to
the term Loan Agreement, the same shall collectively mean (i) that certain
Construction Line of Credit Loan Agreement dated March 13, 1996, between the
Mortgagor and the Mortgagee, as amended by (a) that certain Amendment to
Construction Line of Credit Loan Agreement dated as of May 6, 1996 between the
Mortgagor and the Mortgagee, (b) that certain Amendment to Construction Line of
Credit Loan Agreement dated as of December 30, 1996 between the Mortgagor and
the Mortgagee and (c) that certain Amendment to Construction Line of Credit
Loan Agreement of even date herewith between the Mortgagor and the Mortgagee
(as amended, the "Construction Line of Credit Loan Agreement") and (ii) that
certain Lot Acquisition Loan Agreement (the "Lot Acquisition Loan Agreement")
of even date herewith between the Mortgagor and the Mortgagee.
5. Acknowledgment. Mortgagor agrees that Mortgagee has complied
with each and every term, covenant and condition of the Mortgage, and all other
agreements relating thereto, and that
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Mortgagor, as of the date hereof has no set off, claim or defense of any nature
against the Mortgagee relating to the Mortgage, or any agreement relating
thereto.
6. Representations and Warranties. The Mortgagor hereby makes and
remakes each of the representations and warranties contained in the Mortgage
as of the date hereof, which representations and warranties shall be deemed
continuing and shall survive the execution and delivery hereof.
7. Reaffirmation. Except as modified hereby, the Mortgage and
each of the other Loan Documents shall remain in full force and effect
according to its original terms, covenants and conditions (which are hereby
incorporated herein by reference), and the modifications contained herein shall
not be deemed to be a waiver by Mortgagee of any rights contained in the
Mortgage or in any of the other Loan Documents, including, but not limited to,
the right to demand payment in full of the Note (including both the
$10,000,000.00 Note and the $5,625,000.00 Note) and to foreclose the Mortgage
should the Mortgagor default in any of its obligations contained in the Note,
the Mortgage, the Construction Line of Credit Loan Agreement, the Lot
Acquisition Loan Agreement or in any of the other Loan Documents.
8. Parties Bound. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE XXXXX COMPANIES, INC., a Florida
corporation
By: /s/ XXXX XXXXXX
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Name: XXXX XXXXXX
Title: Vice President
Address: 0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
(the "Mortgagor")
STATE OF FLORIDA )
) S.S.:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me, an officer duly
authorized in the State and County aforesaid, to take acknowledgments, this
11th day of January, 1997 by XXXX XXXXXX as Vice President of The Xxxxx
Companies, Inc., a Florida corporation, on behalf of said corporation, who [X]
is personally known to me or [ ] who has produced _______________________ as
identification.
/s/ XXXXX X. ENGLISH
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NOTARY PUBLIC
XXXXX X. ENGLISH
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(Print Name)
My Commission Expires:
(Seal)
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