EXHIBIT 10.41
AMENDMENT NO. 1 TO MORTGAGE AND SECURITY AGREEMENT
AND OTHER LOAN DOCUMENTS
BETWEEN XXXXXX SUNFOREST, L.P.
AND
SOUTHTRUST BANK, NATIONAL ASSOCIATION
This instrument prepared by:
Xxxx X. Xxxxxx, Esq.
Xxxx & Xxxxxx LLP
One Georgia Center - Suite 1200
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: (000)000-0000
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AMENDMENT NO. 1 TO MORTGAGE AND
SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS
THIS AMENDMENT NO. 1 TO MORTGAGE AND SECURITY AGREEMENT AND OTHER LOAN
DOCUMENTS (this "Amendment") is effective as of the 31st day of December, 1998,
by and among XXXXXX SUNFOREST, L.P., a Georgia limited partnership (hereinafter
referred to as "Borrower"), and SOUTHTRUST BANK, NATIONAL ASSOCIATION, a
national banking association (hereinafter referred to as "Lender").
RECITALS:
Borrower is indebted to Lender for a loan in the principal amount of
$20,251,000.00 (the "Loan"), which was advanced pursuant to the terms and
conditions of a Loan Agreement dated as of March 30, 1998, between Borrower and
Lender (the "Original Loan Agreement") and is evidenced by Promissory Note
dated as of March 30, 1998 (the "Original Note"), is said principal amount
payable by Borrower to the order of Lender. The proceeds of the Loan were used
by Borrower to acquire and construct a 130,997 square foot office building and
related improvements on certain real estate located in Tampa, Hillsborough
County, Florida, more particularly described in EXHIBIT A (collectively, the
"Property"). As security for the Loan, Borrower granted a first lien and
security interest in the Property and certain other collateral pursuant to the
following instruments:
(1) Mortgage and Security Agreement dated as of March 30,
1998, from Borrower to Lender, as recorded on April 6, 1998,
with the County Clerk of Hills borough County, Florida, at Deed
Book 8980, Page 370 (the "Mortgage");
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Amendment No. 1 To Mortgage and Security
Agreement and Other Loan Documents - Page 1
(2) Assignment of Leases and Rents dated as of March 30, 1998, from
Borrower to Lender, as recorded on April 6, with the County Clerk of
Hillsborough County, Florida, at Deed Book 8980, Page 392 (the
"Assignment"); and
(3) UCC-1 Financing Statement naming Borrower as debtor and Lender as
secured party, as filed on April 6, 1998, with the County Clerk of
Hillsborough County, Florida, as instrument #98091481.
The Original Loan Agreement, the Original Note, the Mortgage, the Assignment,
and the other documents, certificates, and instruments executed in connection
with the Loan are collectively referred to as the "Loan Documents".
Lender has agreed, at the request of Borrower, to several modifications of
the terms and conditions of the Loan, including modifications which will extend
the term of the Loan for a period of approximately twenty-four (24) months,
reduce the maximum principal amount of the Loan to $15,500,000.00 and permit
borrowings under the Loan on revolving basis. To evidence such modifications,
Borrower and Lender have entered into an Amended and Restated Loan Agreement
(the "Amended Loan Agreement") and an Amended and Restated Promissory Note (the
"Amended Note") dated of even date herewith, pursuant to which the Original Loan
Agreement and the Original Note respectively are modified and restated in their
entirety. Borrower and Lender have entered into this Amendment for the purpose
of amending the Mortgage, the Assignment, and other Loan Documents.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender agree as follows:
1. MODIFICATIONS TO LOAN DOCUMENTS. Borrower and Lender hereby agree that
the Mortgage, the Assignment, and the other Loan Documents are hereby amended
and modified in the following respects;
(a) The following provision is inserted at the end of Article VI of
the Mortgage, titled "Defeasance":
"Notwithstanding the foregoing, Borrower acknowledges
and agrees that the Secured Indebtedness is revolving
in nature and pursuant to the Loan Agreement the
principal amount of the Secured Indebtedness might,
periodically and from t ime to time, be reduced to
zero. Borrower agrees that, although the Secured In
debtedness might be fully repaid at any time or from
time to time, for so long as the Loan Agreement remains
in effect and has not been terminated pursuant to the
terms thereof, this Mortgage shall not be extinguished,
discharged, nullified, impaired, or otherwise adversely
affect, by operation of law or otherwise, but shall
remain in full force and effect as to all amounts that
Borrower might subsequently
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Amendment No. 1 To Mortgage and Security
Agreement and Other Loan Documents - Page 2
borrow and owe to Lender under the Loan Agreement and the Note or
otherwise constitute Secured Obligations."
(b) All references to the "Loan" in the Mortgage, the Assignment, and
the other Loan Documents shall henceforth refer to the Loan as decreased to
the maximum principal amount of $15,500,000.00. Accordingly, all references
in the Mortgage, the Assignment, and the other Loan Documents to the words
and figures "Twenty Million Two Hundred Fifty-One Thousand and No/100
Dollars" and "$20,251,000.00" are hereby deleted and the words and figures
"Fifteen Million Five Hundred Thousand and No/100 Dollars" and
"$15,500,000.00" are substituted in lieu thereof.
(c) All references to the "Loan Agreement" and the "Note" in the
Mortgage, the Assignment, and the other Loan Documents shall henceforth
refer to the Amended Loan Agreement and the Amended Note respectively, as
the same might hereafter be amended, extended, restated, replaced, or
consolidated.
2. DOCUMENT PROTOCOLS. This Amendment shall be governed by the Document
Protocols attached as Exhibit A to the Amended Loan Agreement, which are
incorporated herein by reference in their entirety.
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Amendment No. 1 To Mortgage and Security
Agreement and Other Loan Documents - Page 3
IN WITNESS WHEREOF, the parties have executed this Amendment on the day and
year first above written, with the intention that this Amendment take effect as
an instrument under seal.
XXXXXX SUNFOREST, L.P., a Georgia limited
partnership
By: XXXXXX & ASSOCIATES ENTERPRISES, INC.,
a Georgia corporation
Its Sole General Partner
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
-----------------------------------
Title: Senior Vice President
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[Affix corporate seal]
STATE OF GEORGIA )
COUNTY OF XXXXXX )
The foregoing Amendment No. 1 To Mortgage and Security Agreement and Other
Loan Documents was acknowledged before me by Xxxxxxx X. Xxxxx, as Senior Vice
President of Xxxxxx & Associates Enterprises, Inc., a Georgia corporation, as
sole general partner of Xxxxxx Sunforest, L.P., a Georgia limited partnership,
on behalf of said corporation as such sole general partner, and who is
personally known to me and who did not take an oath.
Given under my hand and official seal this 5/th/ day of January, 1998.
/s/ Xxxx X. Xxxxxxxx
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Notary Public
My commission expires: Feb 16, 2003
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[Affix notarial seal]
[EXECUTIONS AND ACKNOWLEDGEMENTS CONTINUED ON NEXT PAGE]
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Amendment No. 1 To Mortgage and Security
Agreement and Other Loan Documents - Page 4
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Title: V.P.
--------------------------------
STATE OF GEORGIA )
COUNTY OF XXXXXX )
The foregoing Amendment No. 1 To Mortgage and Security Agreement and Other
Loan Documents was acknowledged before me by Xxxxx X. Xxxxxx, as Vice President
of SouthTrust Bank, National Association, a national banking association, on
behalf of said national banking association and who is personally known to me
and who did not take an oath.
Given under my hand and official seal this 5 day of January, 1998.
/s/ [SIGNATURE ILLEGIBLE]
---------------------------------
Notary Public
My commission expires:___________
[Affix notarial seal]
[END OF EXECUTIONS AND ACKNOWLEDGEMENTS]
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Amendment No. 1 To Mortgage and Security
Agreement and Other Loan Documents - Page 5
