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Exhibit 10.9
This Instrument Prepared by:
Xxxxx Xxxxxx, Xx., Esq.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
FUTURE ADVANCE, MORTGAGE, ASSIGNMENT AND FINANCING
STATEMENT MODIFICATION AND SPREADER AGREEMENT
(Revolving Loan)
THIS FUTURE ADVANCE, MORTGAGE, ASSIGNMENT AND FINANCING STATEMENT
MODIFICATION AND SPREADER AGREEMENT (the "Third Spreader"), made this ____ day
of January, 1996, 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 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");
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
NOTE TO RECORDER: DOCUMENTARY STAMPS AND
PLEASE CROSS REFERENCE TO:
INTANGIBLE TAX ON THE FUTURE ADVANCE NOTE
OFFICIAL RECORDS BOOK 7800
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($5,000,000) ARE AFFIXED HERETO. DOCUMENTARY
PAGE 1590, OFFICIAL RECORDS
STAMPS AND INTANGIBLE TAX ON THE FUTURE
BOOK 7800, PAGE 1617 AND
ADVANCE NOTE ($2,000,000) AND INTANGIBLE
OFFICIAL RECORDS BOOK 7800,
TAX ON THE DEMAND NOTES ($3,000,000)
PAGE 1631, PUBLIC RECORDS OF
ARE AFFIXED TO THE AGREEMENT RECORDED IN
PALM BEACH COUNTY, FLORIDA.
OFFICIAL RECORDS BOOK 8897, PAGE 53, PUBLIC RECORDS OF PALM BEACH COUNTY,
FLORIDA. 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, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA.
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 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 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, Assignment and
Financing Statement were 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
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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, Mortgagor and Mortgagee have agreed that Mortgagee will increase
the Loan, as heretofore increased by the August Notes and consolidated by the
First Consolidated Note, by the maximum amount of Five Million Dollars
($5,000,000.00) (the "Additional Loan") such Additional Loan being evidenced by
a $5,000,000 Revolving Future Advance Mortgage Note (the "Future Advance Note")
of even date herewith, 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, as heretofore
increased by the August Notes and consolidated by the First Consolidated Note,
and the Additional Loan are hereinafter collectively referred to as the
"Consolidated Loan"); and
WHEREAS, Mortgagor and Mortgagee have agreed to modify the Mortgage,
Assignment and Financing 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 dated August 23, 1995 (together the "Agreement") in
order to secure Advances made under the Second 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
and the August Notes, as consolidated by the First Consolidated Note, was
incurred in good faith for value received and as of the date hereof the unpaid
balance of the First Consolidated Note is $15,000,000.00, and the Mortgagor has
no defenses, counterclaims or offsets thereto.
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3. Consolidation. Mortgagor and Mortgagee have agreed to consolidate the
Original Note and the August Notes as consolidated by the First Consolidated
Note 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 Twenty Million Dollars
($20,000,000.00) (U.S.) (the "Second Consolidated Note") which Second
Consolidated Note supercedes and replaces the Original Note, the August Notes,
the First Consolidated Note and the Future Advance Note.
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 Twenty Million Dollars ($20,000,000.00) (U.S.) (the "Loan") made by Mortgagee
to Borrower, Borrower has executed and delivered to Mortgagee a certain
Consolidated Revolving Mortgage Note dated January ___, 1996, 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 effect in addition to the Original Land, First Additional Land
and Second Additional Land presently encumbered and effected thereby, the
additional land owned by Mortgagor and more particularly described on Schedule A
attached hereto (the "Third Additional Land"). The incorporation of the Third
Additional Land into the Mortgage, Assignment and Financing Statement shall have
the same force and effect as if such Third 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 Third 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 Second 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.
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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 Third 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 Third Additional Land,
subject only to the Permitted Prior Encumbrances; (ii) it has full right, power
and authority to bargain, sell, mortgage and convey the Third 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 Third
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 Third
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
Third Spreader and to keep and observe all of the terms of this Third 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 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 Twenty Million and no/100 Dollars ($20,000,000.00) (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 Second
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 Second
Consolidated Note, the Mortgage, as amended hereby, the Assignment, as amended
hereby, the Financing Statement, as amended hereby, and any
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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 Third
Spreader constitutes a modification or amendment, and not a novation.
10. Miscellaneous.
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(a) Recording. Mortgagor shall promptly cause this Third 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 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 Third 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 Third 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 Second Consolidated Note and shall bear interest from the
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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 Second Consolidated
Note or the maximum rate permissible under Florida Law.
(b) Severability. If any one or more of the provisions of this
Third 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
Third 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
Third 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 Third
Spreader as a matter of convenience of reference only; such paragraph headings
are not part of this Third Spreader and shall not be used in the interpretation
of this Third Spreader.
(e) Governing Law. This Third 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
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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 Third 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:_________________________________
Xxxxxxx X. Xxxx, Chairman of the
Board and Chief Executive Officer
-----------------------------
Name Printed:________________
STATE OF FLORIDA )
) SS:
COUNTY OF )
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Before me, a Notary Public in and for said County and State, on this day
of January, 1996, 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 Third 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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