EX-10.2
3
exhibit102.htm
EXHIBIT 10.2
SECOND
AMENDMENT TO
MASTER LOAN AND SECURITY AGREEMENT
THIS
SECOND AMENDMENT TO
MASTER LOAN AND SECURITY AGREEMENT
(“Second
Amendment”)
made
this 29th day of March, 2007 by and among SUNTRUST
BANK, with
its
principle banking office located at 000 X. Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000
(“Bank”),
and
CONSOLIDATED-TOMOKA
LAND CO.,
a
Florida corporation (“Borrower”).
RECITALS
Borrower
and Bank entered into a
Master Loan and Security Agreement, dated May 31, 2002
(“Original
Loan Agreement”)
which
was subsequently amended by that Amendment to
Master Loan and Security
Agreement, dated August 15, 2003, (“First
Amendment to Loan Agreement”)
(the
Original Loan Agreement and First Amendment Loan Agreement collectively referred
to as “Loan
Agreement”).
The
Original Loan Agreement was executed as part of the loan documents evidencing
the Bank’s Seven Million ($7,000,000.00) Dollar loan to Borrower, and as further
evidenced by the SunTrust Promissory Note, dated May 31, 2002 in the original
principal amount of Seven Million ($7,000,000.00) Dollars, (“Original
Note”)
executed by Borrower, and subsequently amended by that certain Allonge to
Promissory Note Dated May 31, 2002, (“Allonge”)
executed by Borrower on August 15, 2003, increasing the outstanding principal
balance due under the Original Note from Seven Million ($7,000,000.00) Dollars
to Ten Million ($10,000,000.00) Dollars. (The Original Note and Allonge
collectively referred to as “Ten
Million Dollar Promissory Note”).
Contemporaneous
with the execution of this Second Amendment, Borrower has executed a Modified
Additional Advance Promissory Note (“Modified
Note”)
modifying the Ten Million ($10,000,000.00) Dollar Promissory Note by increasing
the outstanding principal balance to Twenty Million ($20,000,000.00)
Dollars.
The
parties desire to amend certain terms and provisions of the Loan Agreement
as
more particularly set forth below.
Unless
and except as expressly modified herein, the capitalized terms and defined
terms
utilized and set forth herein shall have the means and definitions ascribed
to
them in the Loan Agreement.
NOW,
THEREFORE,
for the
sum of TEN DOLLARS ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties hereto
agree as follows:
1. Recitals.
The
above recitals are true and correct and are expressly incorporated
herein.
2. Definitions.
Xxxxxxx
0, Xxx-Xxxxxxxxxx (x), (x), (x), (x), (x), (x), (x), (q), (r), (s), (t), (u),
(v), (x), (z), (aa), (bb), (cc), (dd), (ee), (ff), (gg) are hereby
deleted.
3. Promissory
Note.
Section
1.1 Sub-Paragraph L, of the Loan Agreement is hereby deleted and restated to
provide as follows:
“Note”
shall mean the Modified Note, executed simultaneously with this Second Amendment
to Loan Agreement, dated March 29, 2007, in the original principal amount of
Twenty Million ($20,000,000.00) Dollars.
4. The
Facilities.
Subparagraphs (1), (2), (3), (4), and (5), of Section 2.1 and the first
unnumbered paragraph of Section 2.1 all of the Loan Agreement are hereby deleted
and restated in their entirety as follows:
2.1
Loan/Notes.
Subject
to the terms and conditions of this Agreement, as subsequently modified, the
Bank agrees to loan to Borrower the maximum sum of Twenty Million
($20,000,000.00) Dollars, as an unsecured, revolving credit line under the
following terms:
1)
Borrower.
The
advance shall be made to Borrower, who shall be responsible for the repayment
of
the advance and all interest and other charges.
2)
Amount
of Loan.
The
original, maximum loan amount shall mean Twenty Million ($20,000,000.00)
Dollars.
Advances
under the Note shall be subject to the following additional requirements: a)
Borrower shall not be in default with any obligations due to the Bank; and
b)
the Operating Account must be maintained by Borrower with Bank.
3)
Purpose.
Advances under the Line of Credit will be used for the general corporate
purposes of Borrower.
4)
Term
of Line.
The
line shall be represented by a promissory note or notes, payable in accordance
with the Note. The Bank’s advance obligation to advance under this Line of
Credit may be terminated at any time if: (i) in the sole opinion of the Bank,
the Borrower is no longer creditworthy, (ii) it is learned that the Borrower
made material misrepresentation to obtain the credit, (iii) the Borrower refuses
to cooperate with Bank by the submission of requested information in order
to
evaluate or update the Borrower’s overall financial condition, (iv) the Borrower
no longer maintains a satisfactory relationship with the Bank. After the
expiration of the initial two (2) year term of the Note, the Note and Agreement
may be reviewed annually by the Bank for extension for additional one (1) year
terms. The Bank shall determine whether or not to extend the Maturity Date
of
the Note in its sole and absolute discretion. Among other factors the Bank
may
consider for each one (1) year extension of the Note and Agreement the Bank
may
consider the Borrower’s overall banking relationship with the Bank, the
financial condition of the Borrower, and the Borrower’s willingness to cooperate
in submitting requested reports, information and data with which the Bank may
evaluate the Borrower’s overall creditworthiness.
5)
Interest
Rate.
Interest shall be charged on the basis of a three hundred sixty (360) day year
counting the actual number of days elapsed and shall accrue on the principal
amount of the Loan outstanding from time to time at a floating rate per annum
equal to one hundred forty (140) basis points in excess of the Monthly Libor
Index in effect from time to time (the “Applicable Interest Rate”). The
Applicable Interest Rate shall be computed monthly on the first (1st)
day of
each month. “Libor
Rate”
shall
mean an interest rate per annum equal to the thirty (30) day (one month) London
Interbank Offered Rate set for the period as published on each Business Day
in
the Money Rate section of The Wall Street Journal (or The New York Times in
the
event The Wall Street Journal no longer exists or ceases to publish LIBOR rates)
without adjustment by Lender.
5. Line
Pay Down.
Section
2.1, Sub-Paragraph (8) is hereby deleted.
6. Annual
Reports.
Section
2.1, Sub-Paragraph (13) is hereby restated as follows:
The
Borrower shall furnish to Bank, within ninety (90) days after the end of each
fiscal year, a profit loss statement, reconciliation of surplus statement of
the
Borrower for each fiscal year, and a balance sheet at the end of such year,
audited by independent, certified public accountants of recognized standing,
selected by Borrower and satisfactory to Bank. Tax returns shall be furnished
within thirty (30) days from the date of filing with the United States Treasury
Department. Borrower shall provide annual reports as required herein beginning
with the calendar year 2007. All reports shall be prepared in accordance with
generally accepted accounting standards and certified by the Chief Financial
Officer of the Borrower as being true and accurate.
7. Authorization
of Borrower.
Section
3.2, Sub-Paragraph (c) is hereby deleted.
8. Priority
of Security Interests.
Section
3.8 is hereby deleted.
9. Affirmative
Covenants.
Sections 5.1, 5.2, 5.3, and 5.4 are hereby deleted in their
entirety.
10. Financial
Covenants.
Section
6.2 is hereby deleted.
11. Additional
Remedies.
Section
7.2 is hereby deleted.
12. Negative
Covenants.
Section
8.1 through 8.6, inclusive of the Loan Agreement are deleted and Section 8.1
is
restated as follows:
8.1
Indebtedness.
Without
the prior written consent of the Bank, granted or withheld in its sole
discretion, Borrower shall not, in any single fiscal year, incur, create,
assume, or add any additional indebtedness or liability in an amount which
exceeds One Million ($1,000,000.00) Dollars in the aggregate (“Annual
New Indebtedness Limitation”).
For
the purposes of calculating the Annual New Indebtedness Limitation, the
aggregate debt amount, shall not include, for the sole purposes of this Section,
indebtedness which is non-recourse to the Borrower, or indebtedness assumed
by
Borrower in the acquisition of real property to be held by Borrower for
investment purposes.
13. Cross
Default.
This
Agreement and the Note are made and issued in conjunction with other credit
commitments and loans to the Borrower from Bank. A default under this Agreement
and/or the Note shall constitute a default under all commitments and loans
issued to Borrower by Bank, including, but not limited to, the SunTrust
Promissory Note dated July 1, 2002 in the original principal amount of Eight
Million ($8,000,000.00) Dollars executed by Borrower (“$8,000,000.00
Note”).
A
default by Borrower under any other commitment or loan document (i.e. notes,
mortgages, UCC-1’s, assignment of rents, loan agreements, etc.), including, but
not limited to the $8,000,000.00 Note made by Borrower in favor of Bank, shall
be deemed and shall constitute a default in this Agreement and the
Note.
14. Cross
Termination.
This
Agreement and the Note are made and issued in conjunction with an Eight Million
($8,000,000.00) Dollar loan facility (“$8,000,000.00
Loan Facility”)
as
evidenced by the $8,000,000.00 Note. In the event of the payment and
satisfaction of the $8,000,000.00 Note by Borrower, which payment and
satisfaction shall be deemed to be a termination of the $8,000,000.00 Loan
Facility, then the entire amount due to Bank from Borrower pursuant to the
Note,
shall immediately be due and payable.
15. Reaffirmation.
Borrower agrees, stipulates and confirms that the loan documents, including
this
Second Amendment and the Modified Note are valid, binding and enforceful in
accordance with their respective terms, and nothing herein contained shall
invalidate, mitigate or offset the Borrower’s obligation to pay the indebtedness
evidenced by the Modified Note or to perform the obligations set forth in the
Loan Agreement, as herein modified.
16. Miscellaneous.
Except
as expressly provided for herein, all other terms and provisions of the Loan
Agreement remain in full force and effect.
IN
WITNESS WHEREOF,
the
parties hereto have caused this Second Amendment to be executed on the date
shown below the signature of each.
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WITNESSES:
/s/
Xxxxx Xxxxxx
Witness
Signature
Printed
Name:
Xxxxx Xxxxxx
/s/
Xxxxxxx Xxxxxx
Witness
Signature
Printed
Name:
Xxxxxxx Xxxxxx
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BANK:
SUNTRUST
BANK
By: /s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
First Vice President
Signature
Date: March
29, 2007_______
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WITNESSES:
/s/
Xxxxx Xxxxxx
Witness
Signature
Printed
Name:
Xxxxx Xxxxxx
/s/
Xxxxxxx Xxxxxx
Witness
Signature
Printed
Name: Xxxxxxx
Xxxxxx
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BORROWER:
CONSOLIDATED-TOMOKA
LAND CO.,
a
Florida corporation
By: /s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Sr. Vice President and Chief Financial Officer
Signature
Date: March
29, 2007___
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