This Instrument Prepared By Exhibit (10)(xxix)
and return to:
Xxxxx Xxxxxx, Xx., Esq.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
SECOND AMENDMENT TO
LOAN AGREEMENT, SECURITY AGREEMENT AND COLLATERAL
ASSIGNMENT OF LOANS, NOTES, MORTGAGES AND SECURITY DOCUMENTS
This Second Amendment to Loan Agreement, Security Agreement
and Collateral Assignment of Loans, Notes, Mortgages and Security
Documents ("Second Amendment") is executed and delivered as of the
31st day of October, 1996 by and between CV REIT, INC., f/k/a
Cenvill Investors, Inc., a Delaware corporation, Administration
Building, 00000 Xxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000 (the
"Assignor") and OHIO SAVINGS BANK, a federal savings bank, f/k/a
Ohio Savings Bank, an Ohio corporation, 200 Ohio Savings Plaza,
0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 ("Lender");
W I T N E S S E T H :
WHEREAS, in consideration for a loan from Lender to Assignor
in the amount of Seven Million Five Hundred Thousand and no/100
Dollars ($7,500,000.00) made on October 26, 1993 (the "Term Loan"),
Assignor has executed and delivered to Lender its Secured
Promissory Note dated October 26, 1993 in the original amount of
Seven Million Five Hundred Thousand and no/100 Dollars
($7,500,000.00) U.S. (the "Term Note");
WHEREAS, the Term Note is evidenced and secured by, among
other things, a Loan Agreement, Security Agreement and Collateral
Assignment of Loans, Notes, Mortgages and Security Documents
("Assignment") executed and delivered as of the 26th day of
October, 1993 by Assignor to Lender and recorded on October 27,
1993 in Official Records Book 21318, Page 648, of the Public
Records of Broward County, Florida, and on November 1, 1993 in
Official Records Book 3870, Page 3743, of the Public Records of
Volusia County, Florida; and
WHEREAS, Assignor and Lender have heretofore agreed that
Lender shall make available to Assignor a revolving line of credit
not to exceed Four Million and no/100 Dollars ($4,000,000.00)
(U.S.) (the "Revolving Loan"), which is evidenced by a Secured
Revolving Promissory Note dated February 25, 1994 (the "Original
Revolving Note") and secured by the Assignment as modified by First
Amendment to Loan Agreement, Security Agreement and Collateral
Assignment of Loans, Notes, Mortgages and Security Documents
("First Amendment") executed and delivered as of the 25th day of
February, 1994 by Assignor to Lender and recorded on March 1, 1994
in Official Records Book 21811, Page 785, of the Public Records of
Broward County, Florida; and
WHEREAS, Assignor and Lender have agreed that the Revolving
Loan shall be renewed and reduced to a revolving line of credit not
to exceed Two Million Five Hundred Thousand and no/100 Dollars
($2,500,000.00) (U.S.) which renewed and reduced Revolving Loan is
evidenced by a Secured Revolving Promissory Note of even date
herewith (the "Renewal Revolving Note") which renews, replaces and
supercedes the Original Revolving Note and is secured by the
Assignment as modified by the First Amendment and this Second
Amendment.
NOW THEREFORE, in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be
legally bound, the Assignor and Lender hereby covenant and agree as
follows:
1. Recitals. The aforementioned recitals are true and
correct and are hereby incorporated by this reference.
2. Term Loan. The Term Note has heretofore been paid in full
by Assignor.
3. Modification of Assignment as Modified by First Amendment.
The Assignment, as heretofore modified by the First Amendment, is
hereby amended and modified as follows:
(a) The indebtedness evidenced by the Renewal Revolving
Note is and shall be secured by the Assignment. From and after the
date of this Second Amendment, the aggregate principal amount
secured by the Assignment, as hereby amended and modified, shall
never exceed Two Million Five Hundred Thousand and no/100 Dollars
($2,500,000.00).
(b) Definitions. The definitions of the terms listed
below, as added to Section 1 of the Assignment by the First
Amendment, are hereby replaced and superseded by the following:
(s) Maturity date. May 1, 1998.
(t) Maximum Revolving Loan Amount. Two
Million Five Hundred Thousand Dollars
($2,500,000.00).
(u) Maximum Revolving Sublimit. One Million
Dollars ($1,000,000.00).
(w) Revolving Loan. The Revolving Loan in
the maximum amount of Two Million Five Hundred
Thousand Dollars ($2,500,000.00) provided in
Sections 2(d) through (k) hereof, and
evidenced by the Revolving Note and secured by
this Assignment.
(y) Revolving Note. The Secured Revolving
Promissory Note of even date herewith executed
and delivered to Lender by Assignor in the
maximum principal amount of Two Million Five
Hundred Thousand Dollars ($2,500,000.00),
including any partial or total extension,
restatement, renewal, amendment, modification
or substitution thereof or therefor.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings prescribed therefor in the Assignment to
the extent defined therein.
(c) Section 2 (h). Paragraph (h) of Section 2 is hereby
superseded, restated and replaced by the following:
(h) Unused Commitment Fee. On the first day of each
quarter (meaning a period of three (3) consecutive calendar months)
during the term of the Revolving Note, commencing on August 1,
1996, Assignor shall pay to Lender an "Unused Commitment Fee" equal
to one-quarter of one percent (0.25%) per annum (based on a 360 day
year and calculated for the actual number of days elapsed) of the
daily unused portion during the preceding quarter of the difference
between the Maximum Revolving Loan Amount minus the aggregate
amount of outstanding Letters of Credit issued pursuant hereto.
4. Representations and Warranties. Assignor represents
and warrants that it has full power, authority and legal right to
execute, deliver and perform the Renewal Revolving Note and this
Second Amendment, and that, as of the date hereof (i) the
warranties and representations of Assignor contained in the
Assignment are true, correct and complete in all material respects;
(ii) all the material covenants, terms and conditions of the
Assignment remain satisfied; and (iii) no Event of Default, or
event which upon the lapse of time, the giving of notice, or both,
could become an Event of Default, has occurred under the
Assignment.
5. Ratification of Loan Documents. Assignor
acknowledges that the Assignment, as amended hereby, the UCC-1 and
UCC-3 Financing Statements delivered in conjunction therewith, and
any other document or instrument related thereto are valid and
binding; that there are no defenses, set offs or counterclaims
thereto; nothing herein or in the Renewal Revolving Note
invalidates or shall impair or release any covenant, condition,
agreement or stipulation in the Loan Documents; and Assignor shall
perform and comply with and abide by each of the covenants,
agreements, conditions and stipulations of the Loan Documents as
amended hereby.
6. Expenses and Other Payments. At the time of
execution and delivery of this Second Amendment, Assignor shall pay
to Lender all reasonable costs, fees and expenses incurred by
Lender in connection with this Second Amendment.
7. Miscellaneous.
(a) Recording. Assignor shall promptly cause this
Second Amendment to be filed or recorded in such manner and in such
places as may be required by any present or future law in order to
publish notice of and fully to protect the lien of the Assignment
upon and the interest of Lender in, the Assigned Loan Documents.
Assignor will pay all filing and recording fees, and all expenses
incident to the preparation, execution and acknowledgement of this
Second Amendment, and all Federal, state, county and municipal
taxes, duties, assessments and charges now or hereafter arising out
of or in connection with the filing, recording, execution and
delivery of this Second Amendment, including without limitation any
and all documentary stamps and/or intangible taxes. If at any time
any agency of the State of Florida shall determine that the
documentary stamps affixed to the Renewal Revolving Note or the
intangible personal property taxes affixed to this Second Amendment
are insufficient or if no documentary stamps or intangible personal
property taxes have been affixed and that such stamps and taxes
should thereafter be affixed, the Assignor shall pay for the same,
together with any interest or penalties imposed in connection with
such determination. Assignor may, at its expense and after prior
notice to Lender, by appropriate proceedings diligently prosecuted,
contest in good faith the validity or amount of any such taxes,
assessments and other charges and, during the period of such
contest, permit the items so contested to remain unpaid, however,
if at any time Lender shall notify Assignor that, in its opinion,
by nonpayment of any such items that the lien of any Assigned
Mortgage, as to any part of the Mortgaged Property or the validity
or operation of the Assignment, as amended by this Second
Amendment, will be adversely affected, or the nonpayment of any
such items will result in the creation of a lien of equal or
superior priority to any of the Assigned Mortgages upon any of the
Mortgaged Property or of equal or superior priority to the lien and
security interest of the Assignment on any Assigned Loan Document,
Assignor shall promptly pay such taxes, assessments or charges.
(b) Severability. If any one or more of the
provisions of this Second Amendment is held to be invalid, illegal
or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision or provisions in
every other respect and of the remaining provisions of this Second
Amendment shall not be in any way impaired, and each term or
provision shall be construed to be legal, valid, binding and
enforceable to the maximum extent permitted by law.
(c) Survival of Covenants, Agreements,
Representations and Warranties. All warranties, representations
and covenants made by Assignor herein or in any certificate or
other instrument delivered by it or on its behalf under this Second
Amendment shall be considered to have been relied upon by Lender
and shall survive regardless of any investigation made by Lender or
on its behalf. All such statements and any such certificate or
other instrument shall constitute warranties and representations by
Assignor hereunder.
(d) Headings. Paragraph headings have been
inserted in this Second Amendment as a matter of convenience of
reference only; such paragraph headings are not part of this Second
Amendment and shall not be used in the interpretation of this
Second Amendment.
(e) Time of the Essence. Time is hereby expressly
made of the essence with respect to the performance and/or
satisfaction of each of the provisions and conditions of this
Second Amendment.
(f) Governing Law/Jurisdiction/Venue. This Second
Amendment is made and entered into in the County of Cuyahoga, State
of Ohio and shall, in all respects, be interpreted, enforced and
governed by and under the laws of Ohio, and all parties consent to
jurisdiction and venue in any State or Federal Court in said County
and State with respect to any claim, cause of action or proceeding
relating to this Second Amendment, the Renewal Revolving Note or
any transaction contemplated hereby.
(g) Waiver of Trial by Jury. Each party hereby
voluntarily and knowingly waives its right to trial by jury in
connection with any dispute, claim, action, cause of action or
proceeding between the parties hereto relating in any way to the
Renewal Revolving Note, this Second Amendment or any transaction
contemplated hereby.
(h) Limited Modification/Conflicts. Except to the
limited extent expressly provided herein, the Assignment and all
other Loan Documents, as modified by the First Amendment and by
this Second Amendment, including without limitation the addition of
Section 2(j) to the Assignment [which said Section 2(j) is hereby
reaffirmed by Assignor and Lender], shall remain in full force and
effect. In the event of any inconsistency between the terms and
conditions of the Assignment and this Second Amendment, the terms
and provisions of this Second Amendment shall govern and control.
Signed, acknowledged and delivered ASSIGNOR:
in the presence of: CV REIT, INC.,
a Delaware corporation
/s/ Xxxxxxx Xxxxxx By:/s/ Xxxxxx Xxxxxx
-------------------- -------------------------
Name printed: Xxxxxxx Xxxxxx Name Printed: Xxxxxx Xxxxxx
Its: Vice President
/s/ Xxxxx Xxxxxxx
------------------
Name Printed: Xxxxx Xxxxxxx
Witness as to Assignor
LENDER:
OHIO SAVINGS BANK,
a federal savings bank,
f/k/a Ohio Savings Bank,
an Ohio corporation
By: /s/ Xxxxxx Xxxxxxxx
-------------------------
Name Printed: Xxxxxx Xxxxxxxx
Its: President
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Name Printed: Xxxxx X. Xxxxxxxx
Its: Senior Vice Presiden
STATE OF FLORIDA )
)ss:
COUNTY OF PALM BEACH )
Before me, a Notary Public in and for said County and State,
on this 20th day of November, 1996 personally appeared the above-named Xxxxxx
Xxxxxx the Vice President of CV Reit, Inc., a Delaware
corporation, who acknowledged to me that he did sign the foregoing
instrument, and that such signing was the free act and deed of said
CV Reit, Inc. and his free act and deed as such officer. She is
personally known to me.
/s/ Xxxxx Xxxxxxx
---------------------
Printed Name: Xxxxx Xxxxxxx
Notary Public, State of Florida
My Commission Expires: September 24, 2000
(SEAL)
STATE OF OHIO )
)ss:
COUNTY OF CUYAHOGA )
I hereby certify that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to
take acknowledgements, the foregoing instrument was acknowledged
before me by Xxxxxx Xxxxxxxx and Xxxxx X. Xxxxxxxx, President and
Sr. Vice President, respectively, of Ohio Savings Bank, a federal
savings bank, f/k/a Ohio Savings Bank, an Ohio corporation, freely
and voluntarily under the authority duly vested in them by said
corporation. They are personally known to me.
WITNESS my hand and official seal in the County and State last
aforesaid this 31st day of October, 1996.
/s/ X. X. Xxxxxxxx
----------------------------
Notary Public, State of Ohio
(SEAL)
X. X. Xxxxxxxx
----------------------------
Typed, printed or stamped name of
Notary Public
My Commission Expires: September 8, 1999
