1
EXHIBIT 10.44
This Instrument Prepared By:
Xxxxx Xxxxxx, Xx., Esq.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
-------------------------------------------------------------------------------
MORTGAGE AND LOAN
MODIFICATION AND EXTENSION AGREEMENT
--------------------------------------
(Revolving Loan)
THIS MORTGAGE AND LOAN MODIFICATION AND EXTENSION AGREEMENT (the
"Extension Agreement"), made as of this _____ day of July, 2000, by and between
ORIOLE HOMES CORP., a Florida corporation (the "Mortgagor"), having its
principal place of business at Suite 200, 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx
Xxxxx, Xxxxxxx 00000-0000, and OHIO SAVINGS BANK, a federal savings bank, f/k/a
Ohio Savings Bank, F.S.B. and f/k/a Ohio Savings Bank, an Ohio corporation (the
"Mortgagee"), having its principal place of business at 200 Ohio Savings Plaza,
0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000;
NOTE TO RECORDER: PLEASE CROSS REFERENCE TO:
DOCUMENTARY STAMPS AND INTANGIBLE TAX OFFICIAL RECORDS BOOK 7800,
ON THE FUTURE ADVANCE NOTE ($5,000,000) PAGE 1590, PUBLIC RECORDS OF
ARE AFFIXED TO THE AGREEMENT RECORDED PALM BEACH COUNTY, FLORIDA
IN OFFICIAL RECORDS BOOK 9085, PAGE 547, PUBLIC
RECORDS OF PALM BEACH COUNTY, FLORIDA.
DOCUMENTARY STAMPS AND INTANGIBLE TAX ON THE
FUTURE ADVANCE NOTE ($2,000,000) AND INTANGIBLE
TAX ON THE DEMAND NOTES ($3,000,000) ARE AFFIXED
TO THE AGREEMENT RECORDED IN OFFICIAL RECORDS
BOOK 8897, PAGE 53, OF SAID PUBLIC RECORDS.
DOCUMENTARY STAMPS ON THE DEMAND NOTES
($3,000,000) ARE AFFIXED THERETO. DOCUMENTARY
STAMPS AND INTANGIBLE TAX ON THE ORIGINAL AMOUNT
OF THE ORIGINAL NOTE ($10,000,000) ARE AFFIXED
TO THE MORTGAGE RECORDED IN OFFICIAL RECORDS
BOOK 7800, PAGE 1590 OF SAID PUBLIC RECORDS.
W I T N E S E T H:
WHEREAS, in consideration for a revolving line of credit in the maximum
amount of Ten Million Dollars ($10,000,000.00) (the "Loan") made by Mortgagee to
Mortgagor, Mortgagor has executed and delivered to Mortgagee a certain Revolving
Mortgage Note dated July 13, 1993, in the maximum principal amount of the Loan
as aforesaid (the "Original Note");
2
WHEREAS, the Original Note is secured by, among other things, a
Mortgage and Security Agreement (Revolving Loan) dated July 13, 1993, from
Mortgagor to Mortgagee and recorded on July 16, 1993, in Official Records Book
7800, Page 1590, of the Public Records of Palm Beach County, Florida (the
"Mortgage"), which encumbers the land described on Exhibit A attached thereto
(the "Original Land");
WHEREAS, by Mortgage, Assignment and Financing Statement Spreader
Agreement dated May 31, 1995, from Mortgagor to Mortgagee recorded on June 6,
1995, in Official Records Book 8776, Page 262, of the Public Records of Palm
Beach County, Florida, the lien, charge, encumbrance, operation and effect of
the Mortgage was expanded and spread so as to encumber and effect the land
described in Schedule A attached thereto (the "First Additional Land");
WHEREAS, by Future Advance, Mortgage, Assignment and Financing
Statement Extension, Modification and Spreader Agreement dated August 23, 1995,
from Mortgagor to Mortgagee recorded on August 30, 1995, in Official Records
Book 8897, Page 53, of the Public Records of Palm Beach County, Florida (i) the
lien, charge, encumbrance, operation and effect of the Mortgage was expanded and
spread so as to encumber and effect the land described in Schedule A attached
thereto (the "Second Additional Land"); (ii) the maturity date of the Mortgage
was extended to July 1, 1997; and (iii) the Mortgage was modified to secure an
additional $5,000,000 of indebtedness evidenced by a $1,000,000 Demand Revolving
Promissory Note dated August 8, 1995, a $2,000,000 Demand Revolving Promissory
Note dated August 15, 1995 and a $2,000,000 Revolving Future Advance Mortgage
Note dated August 23, 1995 (collectively, the "August Notes") [the Original Note
and the August Notes were consolidated by a $15,000,000 Consolidated Revolving
Mortgage Note dated August 23, 1995 (the "First Consolidated Note")];
WHEREAS, by Future Advance, Mortgage, Assignment and Financing
Statement Extension, Modification and Spreader Agreement dated January 12, 1996,
from Mortgagor to Mortgagee recorded on January 17, 1996, in Official Records
Book 9085, Page 547, of the Public Records of Palm Beach County, Florida (i) the
lien, charge, encumbrance, operation and effect of the Mortgage was expanded and
spread so as to encumber and effect the land described in Schedule A attached
thereto (the "Third Additional Land"); and (ii) the Mortgage was modified to
secure an additional $5,000,000 of indebtedness evidenced by a $5,000,000
Revolving Future Advance Mortgage Note dated January 12, 1996 (the "Future
Advance Note") [the Future Advance Note and the First Consolidated Note were
consolidated by a $20,000,000 Consolidated Revolving Mortgage Note dated January
12, 1996 (the "Second Consolidated Note")];
WHEREAS, by Mortgage and Loan Modification and Extension Agreement
dated July 1, 1997, from Mortgagor to Mortgagee recorded on November 25, 1997,
in Official Records Book 10101, Page 1103, of the Public Records of Palm Beach
County, Florida (i) the Loan, as increased by the August Notes and the Future
2
3
Advance Note and consolidated by the First Consolidated Note and the Second
Consolidated Note (the "Consolidated Loan"), was reduced to the maximum amount
of Ten Million Dollars ($10,000,000.00) (the "Reduced Consolidated Loan") such
Reduced Consolidated Loan being evidenced by a $10,000,000 Renewal Amended and
Restated Consolidated Revolving Mortgage Note dated July 1, 1997 (the "Third
Consolidated Note"), executed and delivered to Mortgagee by Mortgagor and
secured by the Mortgage; and (ii) the maturity date of the Mortgage, pursuant to
the terms and conditions of that certain Revolving Loan Agreement dated July 13,
1993 between Mortgagor and Mortgagee as amended by First Amendment to Revolving
Loan Agreement dated August 23, 1995 and Second Amendment to Revolving Loan
Agreement dated July 1, 1997 (collectively, the "Agreement") was extended to
June 30, 1999;
WHEREAS, by Mortgage and Loan Modification and Extension Agreement
dated October 15, 1998, from Mortgagor to Mortgagee recorded on October 29,
1998, in Official Records Book 10719, Page 221, of the Public Records of Palm
Beach County, Florida the maturity date of the Mortgage was extended to June 30,
2000;
WHEREAS, by Second Mortgage and Loan Modification and Extension
Agreement dated June 30, 2000, from Mortgagor to Mortgagee recorded on
______________, 2000, in Official Records Book _____, Page ___, of the Public
Records of Palm Beach County, Florida the maturity date of the Mortgage was
extended to July 31, 2000;
WHEREAS, Mortgagor and Mortgagee have agreed to extend the maturity
date of the Mortgage for eleven (11) additional months.
NOW THEREFORE, in consideration of the premises and 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, Mortgagor
and Mortgagee hereby covenant and agree as follows:
1. RECITALS. The aforementioned recitals are true and correct and are
hereby incorporated by this reference.
2. EXISTING INDEBTEDNESS. The indebtedness evidenced by the Original
Note, the August Notes and the Future Advance Note, as consolidated by the First
Consolidated Note, the Second Consolidated Note and the Third Consolidated Note,
was incurred in good faith for value received and as of the date hereof the
unpaid balance of the Third Consolidated Note is $10,000.00, and the Mortgagor
has no defenses, counterclaims or offsets thereto.
3. EXTENSION. The maturity date of the Third Consolidated Note, as
heretofore amended and as modified by this Extension Agreement, is extended to
June 30, 2001, anything in said Third Consolidated Note to the contrary
notwithstanding.
3
4
4. MODIFICATION. Clause A on the first page of the Mortgage is hereby
superseded, restated and replaced by the following:
A. In consideration for a revolving line of credit in the maximum
amount of Ten Million Dollars ($10,000,000.00) (U.S.) (the "Loan") made by
Mortgagee to Borrower, Borrower has executed and delivered to Mortgagee a
certain Renewal Amended and Extended Consolidated Revolving Mortgage Note dated
as of July 1, 1997, in the maximum principal amount of the Loan as aforesaid,
payable in full as to principal and accrued interest on June 30, 2001 (the
"Note");
5. DEFINITIONS. Capitalized terms not defined herein shall have the
same meaning as in the Mortgage or the Agreement, as the case may be.
6. REPRESENTATIONS AND WARRANTIES. Mortgagor represents and warrants
that: (a) Mortgagor has full power, authority and legal right to execute this
Extension Agreement and to keep and observe all of the terms of this Extension
Agreement on Mortgagor's part to be observed or performed, and that, as of the
date hereof (i) the warranties and representations of Mortgagor contained in the
Agreement are true, correct and complete in all material respects; (ii) all the
covenants, terms and conditions of the Agreement 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 Agreement.
(b) The aggregate principal obligation of the Mortgagor secured by the
Mortgage is Ten Million and no/100 Dollars ($10,000,000.00) (U.S.) which sum (or
such lesser amount as shall have been actually borrowed by Mortgagor from
Mortgagee) shall be repaid in accordance with the terms of the Third
Consolidated Note.
(c) Mortgagor has not availed, is not availing and has no intention to
avail itself of the right and opportunity available to it under Chapter
697.04(1)(b) Florida Statutes to file of record a notice limiting the maximum
principal amount that may be secured under the future advance provisions of the
Mortgage. Mortgagor makes this representation and warranty knowing that
Mortgagee shall rely upon the same in consideration of the terms and conditions
agreed to herein.
7. RATIFICATION OF LOAN DOCUMENTS. Mortgagor acknowledges that the
Third Consolidated Note, as heretofore amended and as amended hereby, the
Mortgage, as heretofore amended and as amended hereby, and any other document or
instrument related thereto are valid and binding; and there are no defenses, set
offs or counterclaims thereto; nothing herein invalidates or shall impair or
release any covenant, condition, agreement or stipulation in the Loan Documents;
and Mortgagor shall perform and comply with and abide by each of the covenants,
agreements, conditions and stipulations of the Loan Documents as heretofore
amended as amended hereby.
4
5
8. LIMITED MODIFICATION. Except to the limited extent expressly set
forth herein, all other terms and provisions contained in the Third Consolidated
Note and the Mortgage, both as heretofore amended, remain in full force and
effect, and nothing herein and nothing done pursuant hereto shall affect or be
construed to affect the lien, charge and encumbrance of, or warranty of title in
the Mortgage, as heretofore amended, nor the priority thereof over other liens,
charges, encumbrances or conveyances, and the Mortgaged Property (as that term
is defined in the Mortgage) shall remain in all respects subject to the lien,
charge and encumbrance of the Mortgage. This Extension Agreement constitutes a
modification or amendment, and not a novation.
9. MISCELLANEOUS.
(a) RECORDING. Mortgagor shall promptly cause this Extension
Agreement to be filed, registered 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 Mortgage upon, and the interest of
Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing,
administration and recording fees, and all expenses incident to the preparation,
execution and acknowledgment of this Extension Agreement, and all Federal,
state, county and municipal taxes, duties, assessments and charges now or
hereafter arising out of or in connection with the filing, registration,
recording, execution and delivery of this Extension Agreement, including without
limitation any and all documentary stamps and/or intangible taxes. Mortgagor
agrees to hold harmless and indemnify Mortgagee against any liability incurred
by reason of the imposition of any such tax, duty, assessment or charge.
Mortgagor shall pay such sums immediately upon receipt of notice of such amounts
from the authority to which they are due and payable or from Mortgagee or its
assigns. In the event Mortgagor fails to pay said sums, Mortgagee or its
assignee may at its option pay such taxes and/or purchase and affix such
documentary stamps. Any such payment by Mortgagee or its assignee shall be added
to the indebtedness evidenced by the Third Consolidated Note and shall bear
interest from the date advanced to the date of recovery at a rate equal to the
lesser of five percent (5%) per annum higher than the rate of interest then
accruing in accordance with the provisions of the first paragraph of the Third
Consolidated Note or the maximum rate permissible under Florida Law.
(b) SEVERABILITY. If any one or more of the provisions of this
Extension Agreement 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 Extension Agreement 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, REPRESENTATIONS AND WARRANTIES. All
warranties, representations and covenants made by Mortgagor herein or in any
5
6
certificate or other instrument delivered by it or on its behalf under this
Extension Agreement shall be considered to have been relied upon by Mortgagee
and shall survive regardless of any investigation made by Mortgagee or on its
behalf.
(d) HEADINGS. Paragraph headings have been inserted in this
Extension Agreement as a matter of convenience of reference only; such paragraph
headings are not part of this Extension Agreement and shall not be used in the
interpretation of this Extension Agreement.
(e) GOVERNING LAW. This Extension Agreement shall be governed
by and construed in accordance with the laws of the State of Florida.
(f) FURTHER INSTRUMENTS. Mortgagor agrees from time to time,
as may be reasonably required by Mortgagee, to execute and deliver such further
instruments and documents and do all matters and things which may be convenient
or necessary to more effectively and completely carry out the intention
herewith.
(g) CONFLICTS. In the event of any conflict between the
provisions hereof and of the Third Consolidated Note and/or the Mortgage, the
provisions hereof shall govern and control.
THE MORTGAGOR AND MORTGAGEE EACH WAIVES THE RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, ANY ASPECT OF THE
TRANSACTION IN CONNECTION WITH WHICH THIS DOCUMENT IS BEING GIVEN OR ANY
DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH SUCH TRANSACTION. THIS WAIVER
IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY MORTGAGOR AND MORTGAGEE AND
THE MORTGAGOR AND MORTGAGEE EACH ACKNOWLEDGES THAT NO ONE HAS MADE ANY
REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO
MODIFY OR NULLIFY ITS EFFECT. THE MORTGAGOR AND MORTGAGEE EACH FURTHER
ACKNOWLEDGES HAVING BEEN REPRESENTED IN CONNECTION WITH THE TRANSACTION WITH
RESPECT TO WHICH THIS DOCUMENT IS BEING GIVEN AND IN THE MAKING OF THIS WAIVER
BY INDEPENDENT LEGAL COUNSEL, SELECTED BY ITS OWN FREE WILL, AND THAT IT HAS HAD
THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH SUCH COUNSEL. THE MORTGAGOR AND
MORTGAGOR EACH ACKNOWLEDGES HAVING READ AND UNDERSTOOD THE MEANING AND
RAMIFICATIONS OF THIS WAIVER PROVISION.
IN WITNESS WHEREOF, the Mortgagor has caused this Extension Agreement
to be executed as of the date first above written.
MORTGAGOR:
Signed and Acknowledged
in the Presence of: ORIOLE HOMES CORP.,
a Florida corporation
-----------------------------
Name Printed:
----------------
6
7
By:_________________________________
Xxxxxxx X. Xxxx, Chairman of the
Board and Chief Executive Officer
_____________________________
Name Printed: _______________
STATE OF FLORIDA )
)SS:
COUNTY OF PALM BEACH )
Before me, a Notary Public in and for said County and State, on this
day of July, 2000, personally appeared the above-named Oriole Homes Corp., a
Florida corporation, by Xxxxxxx X. Xxxx, its Chairman of the Board and Chief
Executive Officer, who acknowledged to me that he did sign the foregoing
instrument on behalf of said corporation, and that such signing was his free act
and deed as such officer, and the free act and deed of said corporation. Xxxxxxx
X. Xxxx is personally known to me.
_______________________________________
Print Name:____________________________
(SEAL) Notary Public, State of Florida at Large
My Commission Expires: ________________
7
8
IN WITNESS WHEREOF, the Mortgagee has caused this Extension Agreement
to be executed as of the date first above written.
MORTGAGEE:
Signed and Acknowledged
in the Presence of: OHIO SAVINGS BANK, a federal savings
bank, f/k/a Ohio Savings Bank, F.S.B.,
f/k/a Ohio Savings Bank, an Ohio
corporation
---------------------------------
Name Printed:
--------------------
By:
--------------------------------
Xxxxx X. Xxxx, Vice President
Name Printed:
--------------------
STATE OF OHIO )
)SS:
COUNTY OF CUYAHOGA )
Before me, a Notary Public in and for said County and State, on this ____ day of
July, 2000, personally appeared the above-named Xxxxx X. Xxxx, the Vice
president of Ohio Savings Bank, a federal savings bank, f/k/a Ohio Savings Bank,
F.S.B., f/k/a Ohio Savings Bank, an Ohio corporation, personally known by me,
who acknowledged to me that he did sign the foregoing instrument on behalf of
said Bank and that the same was the free act and deed of said Bank and his free
act and deed, individually and as such officer.
Print Name:
-------------------------------
(SEAL) Notary Public, State of Ohio
My Commission Expires:
--------
8
