MORTGAGE MODIFICATION/EXTENSION AGREEMENT
Exhibit
10.3
THIS
MORTGAGE MODIFICATION/EXTENSION AGREEMENT
(the
“Agreement”) made and entered into this 27th
day of
September, 2007, by and between Branch
Banking and Trust Company, N.A.,
(hereinafter referred to as “Mortgagee”), and Pineapple
House of Brevard, Inc,
(hereinafter referred to as “Mortgagor”).
W
I T N E S S E T H:
WHEREAS,
on or
about November 18, 2005, the Mortgagor, as evidence of a loan made to it by
Mortgagee in the principal amount of $14,000,000.00
executed
and delivered to the Mortgagee its Promissory Note dated November 18, 2005,
in
the face amount of $14,000,000.00;
and
WHEREAS,
as
security for payment of the Promissory Note, the Mortgagor executed and
delivered to the Mortgagee a certain Mortgage (the “Mortgage”) dated November
18, 2005, and recorded in Official Records Book 5567
at Page
2467
of the
Public Records of Brevard County, Florida; and
WHEREAS,
the
Mortgagor has requested the Mortgagee to extend the Promissory Note and the
Mortgagee is willing to do so provided the Mortgagor executes and delivers
to
the Mortgagee (i) a Renewal Promissory Note evidencing the extension and (ii)
this Agreement.
WHEREAS,
the
Mortgage and Note evidence an unpaid principal sum now outstanding amounting
to
Six
Million Two Hundred Ninety Two Thousand One Hundred Ninety Nine Dollars and
15/100 ($6,292,199.15)
which
the Mortgagee at Mortgagors request has permitted Mortgagor to renew and modify
as to manner of repayment by a Renewal Promissory Note (the “Renewal Note”) in
favor of Mortgagee of even date herewith and the Mortgagor and Mortgagee desire
to modify the terms of the Loan Documents.
NOW,
THEREFORE,
in
consideration of mutual promises herein contained, the parties do hereby agree
as follows:
1. DEFINITIONS. Unless
expressly defined in this Agreement, all capitalized terms shall have the
definitions set forth in the Mortgage.
2. EXTENSION
OF LOAN. At
the
request of the Mortgagor, the Mortgagee has agreed to extend the loan evidenced
by the Promissory Note, and, as evidence of said extension, the Mortgagor has
executed and delivered to the Mortgagee its Renewal Promissory Note (the
“Renewal Note”) dated the date hereof in the amount of $14,000,000.00.
The
term “Note” shall hereafter mean and refer to the Promissory Note as renewed by
the Renewal Note, as said Promissory Note may be amended, modified, renewed
or
substituted for from time to time.
3. AMOUNTS
DUE ON THE NOTE. There
is
as of the date hereof due and owing to the Mortgagee on the Note the unpaid
principal balance of $6,292,199.15
together
with any accrued interest, with interest thereafter as set forth in the Note.
The Mortgagor further states and agrees that said amounts are absolutely and
unconditionally due and owing to the Mortgagee upon the Note and are not subject
to any claims, counterclaims, defenses or other rights of offset whatsoever.
To
the extent the Mortgagor should have any claims, counterclaims, defenses or
other rights of offset of any nature whatsoever, the Mortgagor in consideration
of the renewal of the Promissory Note does hereby expressly waive any such
claims, counterclaims, defenses or other rights of offset.
4. MORTGAGE
TO CONTINUE TO SECURE NOTE. The
Mortgage shall continue to secure the full and prompt payment of the Note (as
extended by the Renewal Note and as the same may be amended, modified, renewed
or substituted for from time to time in the future) in the same manner and
upon
the same conditions as if the Mortgage originally secured the full and prompt
payment of Note.
5. FUTURE
AMENDMENTS TO NOTE. As
defined above, the term “Note” includes all future amendments, modifications,
renewals or substitutions of the Note and as set forth above, the Mortgage
shall
further secure the Note as so amended, modified, renewed or substituted for
from
time to time. As such, should the Note at any time in the future be amended,
modified, renewed or substituted for, the Mortgage shall continue to secure
the
loan evidenced thereby and it shall not be necessary to execute any further
Modification or Extension Agreement of the Mortgage provided, however, nothing
contained herein shall obligate the Mortgagee to agree to any further extension
or modification in the future.
6. RATIFICATION. Except
as
expressly modified herein, all of the remaining terms and conditions of the
Mortgage and assignment of Rents are hereby ratified and confirmed, and shall
continue to remain in full force and effect. Nothing herein contained shall
be
construed to impair the priority or security afforded by the Mortgage or the
Note secured hereby as herein modified.
7. COMPLETE
AGREEMENT. This
Agreement constitutes the complete agreement between the parties hereto and
incorporates all prior discussions, agreements and representations made in
regard to the matters set forth herein. This Agreement may not be amended,
modified or changed except by writing signed by the party to be charged by
said
amendment, change or modification.
8. SURVIVAL
OF COMMITMENT LETTER.
This
Agreement is being executed by Mortgagee and Mortgagor pursuant to the terms,
conditions and covenants set forth in Mortgagee’s commitment letter to Mortgagor
dated July 7, 2005 (the “Commitment Letter”). Mortgagor and Mortgagee hereby
agree that the terms, conditions, and covenants of the Commitment Letter shall
survive the closing of the Renewal Note and Mortgage Modification/Extension
Agreement, and that a default under the Commitment Letter shall constitute
a
default with respect to the Mortgage and Renewal Promissory Note and Mortgage
Modification/Extension Agreement thereof.
MORTGAGOR
AND MORTGAGEE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY HEREBY WAIVE THE RIGHT
TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO
BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY OF THE PARTIES. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE MORTGAGEE ENTERING INTO THIS
AGREEMENT.
IN
WITNESS WHEREOF,
the
parties have hereunto executed this Agreement as of the day and year above
written.
| Signed, sealed and delivered | Mortgagor: |
|
in
the presence of:
|
Pineapple
House of Brevard, Inc
|
|
/s/ Xxxxxxx
X. Xxxxxxx
Witness:
Xxxxxxx X. Xxxxxxx
|
/s/ Xxxxxxx
X. Xxxxxx
Xxxxxxx X. Xxxxxx, Vice
President
|
|
/s/ Xxxxxx
X. Xxxxxxx
Witness:
Xxxxxx X. Xxxxxxx
|
|
Mortgagee:
Branch
Banking and Trust Company
|
|
/s/ Xxxxxxxx
Xxxxx
Witness:
Xxxxxxxx Xxxxx
|
/s/ Xxxx
X. Xxxxxxx
Xxxx
X. Xxxxxxx, Vice President
|
|
|
|
|
/s/ Xxxxxxxx
Lars
Witness:
Xxxxxxxx Xxxx
|
STATE
OF
FL
COUNTY
OF
Alachua
The
foregoing instrument was acknowledged before me this 27th
day of
September, 2007 by Xxxxxxx X. Xxxxxx, as Vice President of Pineapple House
of
Brevard, Inc. who is personally
known to me or has
produced Florida
Drivers License
as
identification.
/s/ Xxxxxx
X. Xxxxxxx
Notary
Public
STATE
OF
FLORIDA
COUNTY
OF
BREVARD
The
foregoing instrument was acknowledged before me this 27th
day of
September, 2007 by Xxxx X. Xxxxxxx as Vice President of Branch Banking and
Trust
Company who is personally
known to me
or has
produced
as
identification.
/s/ Xxxxxxxx
Xxxxx
Notary
Public
