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Exhibit 10.8
This Instrument Prepared by:
Xxxxx Xxxxxx, Xx., Esq.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
FUTURE ADVANCE, MORTGAGE, ASSIGNMENT AND FINANCING
STATEMENT EXTENSION, MODIFICATION AND SPREADER AGREEMENT
--------------------------------------------------------
(Revolving Loan)
THIS FUTURE ADVANCE, MORTGAGE, ASSIGNMENT AND FINANCING STATEMENT
EXTENSION, MODIFICATION AND SPREADER AGREEMENT (the "Second Spreader"), made
this ____ day of August, 1995, by 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, to OHIO SAVINGS BANK, F.S.B.,
a federal savings bank, f/k/a Ohio Savings Bank, an Ohio corporation (the
"Mortgagee"), having its principal place of business at Ohio Savings Plaza, 0000
Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000;
W I T N E S S E T H:
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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");
WHEREAS, the Original Note is secured by 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"), an Assignment of Rents
and Leases and Agreements Affecting Real Estate dated July 13, 1993, from
Mortgagor to Mortgagee and recorded on July 16, 1993, in Official Records Book
7800, Page 1617, of said Public Records (the "Assignment") and a UCC-1 Financing
Statement from Mortgagor, as Debtor, to Mortgagee, as Secured Party, and
recorded on July 16, 1993 in Official
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NOTE TO RECORDER: DOCUMENTARY STAMPS
PLEASE CROSS REFERENCE TO:
ON THE FUTURE ADVANCE NOTE ($2,000,000)
OFFICIAL RECORDS BOOK 7800
AND INTANGIBLE TAX ON THE FUTURE ADVANCE
PAGE 1590, OFFICIAL RECORDS
NOTE AND DEMAND NOTES ($5,000,000) ARE
BOOK 7800, PAGE 1617, AND
AFFIXED HERETO. DOCUMENTARY STAMPS ON THE
OFFICIAL RECORDS BOOK 7800,
DEMAND NOTES ($3,000,000) ARE AFFIXED
PAGE 1631, PUBLIC RECORDS OF THERETO. DOCUMENTARY STAMPS AND
INTANGIBLE PALM BEACH COUNTY, FLORIDA.
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, PUBLIC RECORDS OF
PALM BEACH COUNTY, FLORIDA.
Records Book 7800, Page 1631, of said Public Records (the "Financing
Statement"), each of 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, Assignment and Financing Statement were expanded and spread so as
to encumber and affect the land described in Schedule A attached thereto (the
"First Additional Land");
WHEREAS, Mortgagor and Mortgagee have agreed that Mortgagee will increase
the Loan by the maximum amount of Five Million Dollars ($5,000,000.00) (the
"Additional Loan") such Additional Loan being evidenced by a $1,000,000 Demand
Revolving Promissory Note dated August 8, 1995 and a $2,000,000 Demand Revolving
Promissory Note dated August 15, 1995 (collectively, the "Demand Notes") and a
$2,000,000 Revolving Future Advance Mortgage Note (the "Future Advance Note") of
even date herewith, each executed and delivered to Mortgagee by Mortgagor, and
pursuant to Section 4 of the Mortgage, Mortgagor and Mortgagee have agreed that
said Additional Loan shall be secured by the Mortgage (the Loan and the
Additional Loan are hereinafter collectively referred to as the "Consolidated
Loan"); and
WHEREAS, Mortgagor and Mortgagee have agreed to extend the maturity date
of the Mortgage; and to modify the Mortgage, Assignment and Financing
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Statement to expand and spread the lien and encumbrance of the Mortgage,
Assignment and Financing Statement to additional land, 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 of even date herewith (together the "Agreement") in order to secure
Advances made under the Consolidated Note (hereinafter defined).
NOW THEREFORE, in consideration of the Consolidated Loan, 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
was incurred in good faith for value received and as of the date hereof the
unpaid balance of the Original Note is $10,000,000.00, and the Mortgagor has no
defenses, counterclaims or offsets thereto.
3. Consolidation. Mortgagor and Mortgagee have agreed to consolidate the
Original Note, the Demand Notes and the Future Advance Note, and in furtherance
thereof, Mortgagor has executed and delivered to Mortgagee a Consolidated
Revolving Mortgage Note of even date herewith in the principal amount of Fifteen
Million Dollars ($15,000,000.00) (the "Consolidated Note") which Consolidated
Note supercedes and replaces the Original Note, the Demand Notes and the Future
Advance Note.
4. Extension and 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 Fifteen Million Dollars ($15,000,000.00) (the "Loan") made by Mortgagee to
Borrower, Borrower has executed and delivered to Mortgagee a certain
Consolidated Revolving Mortgage Note dated August ___, 1995, in the maximum
principal amount of the Loan as aforesaid, payable in full as to principal and
accrued interest on July 1, 1997 (the "Note");
5. Spreading of Mortgage, Assignment and Financing Statement. The lien,
charge, encumbrance, operation and effect of the Mortgage, Assignment and
Financing Statement shall be and the same are hereby expanded and spread so as
to encumber and affect in addition to the Land and Additional Land presently
encumbered and affected thereby, the additional land owned by Mortgagor and more
particularly described on
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Schedule A attached hereto (the "Second Additional Land"). The incorporation of
the Second Additional Land into the Mortgage, Assignment and Financing Statement
shall have the same force and effect as if such Second Additional Land was
described in Exhibit A to the Mortgage, Assignment and Financing Statement at
the time of the execution and delivery thereof to Mortgagee.
6. Definitions. (a) All references in the Mortgage to "Land", "Premises"
and "Mortgaged Property," and all references in the Assignment and Financing
Statement to "Premises," shall be construed to refer to the entire real and
personal property now encumbered and affected by the Mortgage, Assignment and
Financing Statement, together with the Second Additional Land described on
Schedule A attached hereto.
(b) All references in the Mortgage and Assignment to the "Note"
shall be construed to refer to the Consolidated Note.
(c) Capitalized terms not defined herein shall have the same
meaning as in the Mortgage, the Assignment or the Agreement, as the case may be.
7. Representations and Warranties. Mortgagor represents and warrants that:
(a)(i) Mortgagor is lawfully seized with good and marketable title in fee simple
absolute to the Second Additional Land free and clear of all liens and
encumbrances whatsoever, except taxes and assessments general and special not
delinquent, zoning ordinances and except for those matters set forth in Schedule
B attached hereto (hereinafter "Permitted Prior Encumbrances"), and has good and
marketable title to all personal property included in the Second Additional
Land, subject only to the Permitted Prior Encumbrances; (ii) it has full right,
power and authority to bargain, sell, mortgage and convey the Second Additional
Land as provided herein and in the Mortgage; and (iii) except as expressly
provided above, it will warrant and defend to the Mortgagee such title to the
Second Additional Land and the lien and interest of the Mortgagee therein and
thereon against all claims and demands whatsoever and will maintain the priority
of the lien, and the security interest granted by, the Mortgage upon the Second
Additional Land until the Mortgagor shall be entitled to defeasance as provided
therein.
(b) Mortgagor has full power, authority and legal right to execute this
Second Spreader and to keep and observe all of the terms of this Second Spreader
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
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lapse of time, the giving of notice, or both, could become an Event of Default,
has occurred under the Agreement.
(c) The aggregate principal obligation of the Mortgagor secured by the
Mortgage is Fifteen Million and no/100 Dollars ($15,000,000.00) 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 Consolidated
Note.
(d) 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.
8. Ratification of Loan Documents. Mortgagor acknowledges that the
Consolidated Note, the Mortgage, as amended hereby, the Assignment, as amended
hereby, the Financing Statement, 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 amended hereby.
9. Limited Modification. Except to the limited extent expressly set forth
herein, all other terms and provisions contained in the Mortgage, Assignment and
Financing Statement 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, Assignment or
Financing Statement nor the priority thereof over other liens, charges,
encumbrances or conveyances, and the Mortgaged Property (as that term is defined
in the Mortgage), the real and personal property described in Exhibit B to the
Financing Statement, and the Additional Collateral (as that term is defined in
the Assignment) shall remain in all respects subject to the lien, charge and
encumbrance of the Mortgage, Assignment and Financing Statement. This Second
Spreader constitutes a modification or amendment, and not a novation.
10. Miscellaneous.
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(a) Recording. Mortgagor shall promptly cause this Second
Spreader 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
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notice of and fully to protect the lien of the Mortgage upon, and the interest
of Mortgagee in, the Mortgaged Property, and the lien of the Assignment upon,
and the interest of Mortgagee in, the Additional Collateral. Mortgagor will pay
all filing, administration and recording fees, and all expenses incident to the
preparation, execution and acknowledgement of this Second Spreader, 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 Second Spreader, 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 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 Consolidated Note
or the maximum rate permissible under Florida Law.
(b) Severability. If any one or more of the provisions of this
Second Spreader 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 Spreader 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
certificate or other instrument delivered by it or on its behalf under this
Second Spreader 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 Second
Spreader as a matter of convenience of reference only; such paragraph headings
are not part of this Second Spreader and shall not be used in the interpretation
of this Second Spreader.
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(e) Governing Law. This Second Spreader 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 Mortgage, Assignment or Financing Statement, 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 Second Spreader 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:________________
By:_________________________________
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Xxxxxxx X. Xxxx, Chairman of the
Board and Chief Executive Officer
-----------------------------
Name Printed:________________
STATE OF FLORIDA )
) SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, on this day
of August, 1995, 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 or has produced __________________ as
identification.
Print Name:__________________________________(SEAL)_______________________
Notary Public, State of Florida at Large
My Commission Expires: _______________________
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SCHEDULE A
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Legal Description of the Second Additional Land to be
added to the Land previously mortgaged to the Mortgagee.
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SCHEDULE B
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Permitted Prior Encumbrances
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