Exhibit 10.9
This Instrument Prepared By
and Return To:
XXXX X. XXXXXXXXXX, ESQ.
Xxxxx, McClosky, Smith,
Xxxxxxxx & Xxxxxxx, P.A.
X.X. Xxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
MORTGAGE MODIFICATION AGREEMENT/1
THIS MORTGAGE MODIFICATION AGREEMENT ("Agreement") is made by and
between XXXXXXXXXXXXX.XXX, INC., a Florida corporation ("Borrower"), XXXX X.
XXXXX (the "Guarantor") (the Borrower and the Guarantor are collectively, the
"Obligors"), and SOUTHTRUST BANK, NATIONAL ASSOCIATION, its nominees and/or
assigns ("Lender" or "Bank") effective September 17, 1999.
R E C I T A L S:
A. The Borrower is indebted to the Lender pursuant to that certain
Promissory Note ("Promissory Note") dated April 29, 1999, executed by Borrower
in the original principal amount of ONE MILLION SIX HUNDRED EIGHTY THOUSAND
DOLLARS ($1,680,000) (the "Indebtedness").
B. The Indebtedness is secured by, inter alia: (i) Florida Real Estate
Mortgage, Assignment of Leases and Rents and Security Agreement dated April 29,
1999, recorded in Official Records Book 29421, Page 1377, of the Public Records
of Broward County, Florida (the "Mortgage"); and (ii) UCC-1 recorded in Official
Records Book 29421, Page 1407, of the Public Records of Broward County, Florida
("UCC").
C. The Guarantor guaranteed the Indebtedness pursuant to, inter alia,
the Continuing and Unconditional Guaranty dated April 29, 1999 (the "Guaranty").
--------
1/DOCUMENTARY STAMPS AND INTANGIBLE TAX IN THE AMOUNT REQUIRED BY LAW WITH
REGARD TO THE ORIGINAL INDEBTEDNESS WERE AFFIXED TO THE REAL ESTATE MORTGAGE,
ASSIGNMENT AND SECURITY AGREEMENT RECORDED IN OFFICIAL RECORDS BOOK 29421, PAGE
1377, PUBLIC RECORDS OF BROWARD COUNTY, FLORIDA ("ORIGINAL MORTGAGE"). THIS
DOCUMENT PROVIDES FOR A FUTURE ADVANCE TO BE SECURED BY THE MORTGAGE.
DOCUMENTARY STAMPS AND INTANGIBLE TAX ARE NOW DUE ON $5,500.00 AND ARE AFFIXED
HERETO.
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D. The Indebtedness, Mortgage, UCC, the Guaranty, and any other
documents executed in connection with the foregoing are hereinafter collectively
referred to as the "Loan Documents".
E. The Obligors have requested and the Lender has agreed to modify the
terms of the Loan Documents as more particularly set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for TEN DOLLARS
($10) and other good and valuable considerations, the parties agree as follows:
1. The foregoing recitations are true and correct and are incorporated
herein by reference.
2. The provisions of this Agreement shall control in the event of any
conflict with the provisions of the Loan Documents, the unaffected provisions of
which are specifically reaffirmed and incorporated herein by reference.
3. The Indebtedness is restated and modified to include not only the
Promissory Note but also the additional amount of One Million Dollars
($1,000,000) evidenced by that certain Promissory Note dated even date herewith
in the original principal amount of One Million Dollars ($1,000,000) executed by
the Borrower in favor of the Bank ("Line of Credit Note"). The maturity date of
the Line of Credit Note is one (1) year following the date hereof.
4. The Mortgage, as amended by this Agreement, shall continue to secure
the Promissory Note and in addition shall secure the Line of Credit Note as if
the Line of Credit Note was originally secured by the Mortgage.
5. The Obligors acknowledge and agree that the Lender shall not be
obligated to further modify the Indebtedness or the Mortgage. In conjunction
with the foregoing, Lender shall not be obligated to make any additional
advances under the Loan Documents.
6. AS A MATERIAL INDUCEMENT FOR LENDER TO EXECUTE THIS AGREEMENT, THE
OBLIGORS DO HEREBY RELEASE, WAIVE, DISCHARGE, COVENANT NOT TO XXX, ACQUIT,
SATISFY AND FOREVER DISCHARGE LENDER, ITS OFFICERS AND DIRECTORS, EMPLOYEES AND
AGENTS AND ITS AFFILIATES, AND ASSIGNS FROM ANY AND ALL LIABILITY, CLAIMS,
COUNTERCLAIMS, DEFENSES, ACTIONS, CAUSES OF ACTION, SUITS, CONTROVERSIES,
AGREEMENTS, PROMISES AND DEMANDS WHATSOEVER IN LAW OR IN EQUITY WHICH THE
OBLIGORS EVER HAD, OR HAVE, OR WHICH ANY PERSONAL REPRESENTATIVE, SUCCESSOR,
HEIR OR ASSIGN OF OBLIGORS HEREAFTER CAN, SHALL OR MAY HAVE AGAINST THE LENDER,
ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, AND ITS AFFILIATES AND ASSIGNS,
FOR, UPON OR BY REASON OF ANY MATTER, CAUSE OR THING
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WHATSOEVER RELATED TO THE LOAN DOCUMENTS THROUGH THE DATE THIS AGREEMENT HAS
BEEN EXECUTED. OBLIGORS FURTHER EXPRESSLY AGREE THAT THE FOREGOING RELEASE AND
WAIVER AGREEMENT IS INTENDED TO BE AS BROAD AND INCLUSIVE AS PERMITTED BY THE
LAWS OF THE STATE OF FLORIDA. IN ADDITION TO, AND WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, AND IN CONSIDERATION OF THE LENDER'S EXECUTION OF
THIS AGREEMENT, OBLIGORS COVENANT WITH AND WARRANT UNTO LENDER, AND ITS
AFFILIATES AND ASSIGNS, THAT THERE EXISTS NO CLAIMS, COUNTERCLAIMS, DEFENSES,
OBJECTIONS, OFFSETS OR CLAIMS OF OFFSETS AGAINST LENDER RELATED TO THE LOAN
DOCUMENTS OR THE OBLIGATION OF OBLIGORS TO PAY THE INDEBTEDNESS TO LENDER WHEN
AND AS THE SAME BECOMES DUE AND PAYABLE.
7. The Obligors hereby agree that, in consideration of the recitals and
mutual covenants contained herein, and for other good and valuable
consideration, including the forbearance of Lender from exercising its rights
and remedies otherwise available to it, as hereby amended, the receipt and
sufficiency of which are hereby acknowledged, in the event the Obligors (or any
of them) shall: (i) file with any bankruptcy court of competent jurisdiction or
be the subject of any petition (which is not dismissed within ninety [90] days
from the filing) under Title 11 of the U.S.C. Code, as amended; (ii) be the
subject of any order for relief issued under such Title 11 of the U.S.C. Code,
as amended (which is not dismissed within ninety [90] days from the filing);
(iii) file or be the subject of any petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future federal or state act or law relating to
bankruptcy, insolvency or other relief for debtors (which is not dismissed
within ninety [90] days from the filing); (iv) have sought or consented to or
acquiesced in the appointment of any trustee, receiver, conservator or
liquidator; (v) be the subject of any order, judgment or decree entered by any
court of competent jurisdiction approving a petition filed against such party
for any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future federal or state act
or law relating to bankruptcy, insolvency or relief for debtors (which is not
dismissed within ninety [90] days from the filing); and/or (vi) be the subject
of any action (which is not dismissed within ninety [90] days from the filing)
to set aside or otherwise prevent the provisions of this Agreement
(subparagraphs [i] - [vi] above are hereinafter collectively defined as
"Bankruptcy Proceedings"), Lender shall thereupon be entitled to relief from any
automatic stay imposed by Section 362 of Title 11 of the U.S.C. Code, as
amended, or otherwise, on or against the exercise of the rights and remedies
otherwise available to Lender as provided in the Loan Documents and as otherwise
provided by law.
8. Obligors agree to pay to Lender any and all documentary stamps
and/or intangible taxes and all interest and penalties associated therewith
which may be assessed on account of the execution and/or recording of this
Agreement. Obligors shall pay such sums immediately upon receipt of notice of
such amounts from Lender or its assigns. In the event Obligors fail to pay such
sums, Lender or its assigns may, at its option, pay such taxes and/or
documentary stamps. Any such payment by Lender or its assigns shall be added to
the Indebtedness and shall bear interest from the
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date advanced to the date of recovery at the maximum rate permissible under
Florida law. If Obligors fail to pay any and all documentary stamps and/or
intangible taxes and any interest or penalties associated therewith which may be
assessed on account of the execution and/or recording of this Agreement, it
shall be deemed to be a default under the terms hereof and shall immediately
accelerate the principal balance due hereunder, together with accrued interest.
The Obligors shall have the right to contest the foregoing charges;
provided such does not adversely affect the Lender or the Loan Documents.
9. The Guarantor hereby confirms that the Guaranty remains in full
force and effect and shall, inter alia, guarantee the repayment of the
Promissory Note and Line of Credit Note.
10. This Agreement shall not be construed more strictly against either
party by virtue of the preparation hereof.
11. Except as herein specifically provided, all of the terms,
provisions and representations of the Loan Documents are hereby specifically
reaffirmed by the Obligors and are incorporated herein by this reference. THE
OBLIGORS (AND EACH OF THEM) HEREBY AGREE AND CONFIRM THAT, AS OF THE DATE
HEREOF, THE LOAN DOCUMENTS ARE IN FULL FORCE AND EFFECT. THIS AGREEMENT
SUPERSEDES ALL PRIOR NEGOTIATIONS AND/OR CORRESPONDENCE RELATING TO THE LOAN
DOCUMENTS.
12. Time is of the essence under the Loan Documents and this Agreement.
13. The Obligors warrant and represent that all of the parties
executing this Agreement on behalf of the Obligors are duly authorized to
execute this Agreement and that this Agreement is valid and binding upon the
Obligors in accordance with its terms.
14. This Agreement may be executed in one or more counterparts, each of
which shall be an original, but all of which shall constitute one (1) and the
same agreement. This Agreement may be executed and delivered via telecopy.
15. This Agreement is not intended to be a novation, but merely to
evidence a modification, and it is not the intention of the parties to create a
novation of the Loan Documents.
16. This Agreement shall not be binding upon the Lender nor shall this
Agreement constitute an offer by the Lender until such time as this Agreement is
fully executed.
17. A default or breach of a representation or warranty by the
Obligors, or any of them, under this Agreement shall constitute a default under
the Loan Documents.
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18. The obligations of the Obligors under this Agreement shall be joint
and several. The reference to the Obligors hereunder shall, at the Lender's
option, be to all or any of the Obligors.
IN WITNESS WHEREOF, Obligors and Lender have executed this Agreement as
of the day and year set forth above.
Signed, sealed and delivered BORROWER:
in the presence of:
XXXXXXXXXXXXX.XXX, INC., a Florida
corporation
/s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxx, M.D. (SEAL)
------------------------- -------------------------------------
Print Name: Xxxxx Xxxxxx Print Name: Xxxx Xxxxx
-------------------------------------
Title: President/CEO
-------------------------------------
Date: 9-17-99
/s/ Xxxxxxx X. Xxxxxxxxxxxx Address: 0000 X.X. 00xx Xxxxxx
----------------------------------- Xxxxxxx Xxxxx, Xxxxxxx 00000
Print Name: Xxxxxxx X. Xxxxxxxxxxxx
GUARANTOR:
/s/ Xxxxx Xxxxxx /s/ Xxxx Xxxxx
----------------------------------- ---------------------------------------
Print Name: Xxxxx Xxxxxx XXXX X. XXXXX
Date: 9-17-99
/s/ Xxxxxxx X. Xxxxxxxxxxxx Address: 0000 X.X. 00xx Xxxxxx
----------------------------------- Xxxxxxx Xxxxx, Xxxxxxx 00000
Print Name: Xxxxxxx X. Xxxxxxxxxxxx
LENDER:
SOUTHTRUST BANK, NATIONAL ASSOCIATION
/s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxx (SEAL)
------------------------- ------------------------------------
Print Name: Xxxxx Xxxxxx Print Name: Xxxxx Xxxx
------------------------------------
Title: Vice President
------------------------------------
Date: 9/17/99
/s/ Xxxxxxx X. Xxxxxxxxxxxx Address: One East Broward Boulevard
----------------------------------- Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Print Name: Xxxxxxx X. Xxxxxxxxxxxx
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STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by Xxxx
Xxxxx, the President of XXXXXXXXXXXXX.XXX, INC., a Florida corporation, freely
and voluntarily under authority duly vested in him/her by said corporation and
that the seal affixed thereto is the true corporate seal of said corporation.
He/She is personally known to me or who has produced _____________________ as
identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of September, 1999.
/s/ Xxxxxxx X. Xxxxxxxxxxxx
----------------------------------
Notary Public
----------------------------------
Typed, printed or stamped name of
Notary Public
My Commission Expires:
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by XXXX X.
XXXXX, who is personally known to me or who has produced
________________________ as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of September,1999.
/s/ Xxxxxxx X. Xxxxxxxxxxxx
---------------------------------
Notary Public
---------------------------------
Typed, printed or stamped name of
Notary Public
My Commission Expires:
6
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by Xxxxx
Xxxx, the Vice President of SOUTHTRUST BANK, NATIONAL ASSOCIATION, a national
banking association, freely and voluntarily under authority duly vested in
him/her by said association. He/She is personally known to me or who has
produced ______________________ as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of September, 1999.
/s/ Xxxxxxx X. Xxxxxxxxxxxx
---------------------------------
Notary Public
---------------------------------
Typed, printed or stamped name of
Notary Public
My Commission Expires:
