FIRST AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT
Exhibit
10.8
FIRST
AMENDMENT TO MORTGAGE AND
SECURITY AGREEMENT
THIS
FIRST AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT (“Amendment”),
dated as
of June 26, 2007, between
COSTA XXXXXX XX REAL ESTATE, LLC,
a
Florida limited liability company, having an address at 0000 Xxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000, XXXXX
XXXXXX III REAL ESTATE, LLC,
a
Florida limited liability company, having an address at 0000 Xxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000, TDS
TOWN HOMES (PHASE 1), LLC,
a
Florida limited liability company, having an address at 0000 Xxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000 and TDS
TOWN HOMES (PHASE 2), LLC,
a
Florida limited liability company, having an address at 0000 Xxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000, jointly and severally (collectively, “Mortgagor”),
and
XXXXXXX
FUNDING, INC.
(“Lender”),
a New
Jersey corporation having an address at Xxx Xxxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxx Xxxxxx 00000 as Agent for the lenders identified in Schedule
A
of the Note (as hereinafter defined), in each case having an address care of
Xxxxxxx Funding, Inc., Xxx Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx
00000 (the aforesaid Lender and lenders are hereinafter collectively referred
to
as “Mortgagee”).
Mortgagor and Mortgagee may hereinafter be referred to at times individually
as
a “Party”
and
collectively as the “Parties”.
WITNESSETH:
WHEREAS,
Mortgagor and Mortgagee are parties to that certain Mortgage and Security
Agreement dated as of April 20, 2007 (the “Original
Mortgage”);
and
WHEREAS,
Mortgagor and Mortgagee wish to amend the Original Mortgage as set forth
below.
NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements contained in the Original
Mortgage, the Parties, intending to be legally bound, agree as
follows:
1. From
and
after the effective date of this Amendment, the following text is hereby added
as a new Section 6.28 of the Original Mortgage.
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“Section
6.28. CROSS
COLLATERALIZATION.
Mortgagor
understands and agrees that the Loan is and will be cross-collateralized
with
that certain loan dated
as
of June 26, 2007 in
the
amount of Four
Million Four Hundred Fifty Thousand ($4,450,000) Dollars by and between Xxxxx
Xxxxxx I Real Estate, LLC, a Florida limited liability company and Mortgagee,
as
Agent (the “Costa
I Loan”).
It is
understood and agreed that a default (beyond any applicable grace periods)
under
the terms and conditions of (i) that certain Loan
and
Security Agreement dated as of June 26, 2007 (“Costa
I Loan Agreement”),
between Xxxxx
Xxxxxx I Real Estate, LLC (“Costa
I”)
and
Mortgagee, as Agent, and/or (ii) any other document or agreement given or
delivered to Mortgagee in connection therewith, including without limitation
that certain (a) Promissory Note in the original principal amount of Four
Million Four Hundred Fifty Thousand ($4,450,000) Dollars dated as of June
26, 2007, and (b) and that certain Mortgage and Security Agreement
filed
in the County of Polk, State of Florida which was given as security for the
repayment of said Promissory Note (the “Costa
I Loan Documents”)
will
also constitute a default under the terms and conditions of the Loan and
will
entitle Mortgagee to all rights and remedies available to Mortgagee under
the
Costa I Loan Documents. It is further understood and agreed that in the event
Mortgagor defaults (beyond any applicable grace periods) under the terms
and
conditions of the Loan or any of the Loan Documents executed or delivered
in
connection with the Loan, Mortgagee shall have the right to declare the Costa
I
Loan in default and accelerate same and avail itself of any rights and remedies
thereunder. Mortgagor shall execute any and all documents necessary to
effectuate such cross-collateralization.”
2. From
and
after the effective date of this Amendment, Section 2.20(f) of the Original
Mortgage is deleted in its entirety and replaced with the following
text.
“The
Mortgagor acknowledges and agrees that the Note may only be prepaid in whole
if
either (1) all amounts due and owning to Mortgagee pursuant to the Costa I
Loan
Documents are paid in full and no obligations to Mortgagee are outstanding
thereunder, or (2) the Project (as defined in the Loan Agreement) is fully
completed, as determined by Mortgagee in its sole discretion, or (3) the
Mortgagor deposits with Mortgagee, in cash, an amount equal to the greater
of
(i) the amount of the Holdback (as defined in the Loan Agreement), and (ii)
the
amount necessary to complete the Project, as determined by Mortgagee in its
reasonable discretion (“Cash
Collateral”).
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Notwithstanding
the foregoing, in the event the Mortgagor deposits the
Cash Collateral with Mortgagee, regardless of whether the Note is prepaid in
whole, and no Event of Default
hereunder or under any other Loan Documents or any of the Costa I Loan Documents
shall have occurred beyond any applicable cure periods, Mortgagee shall, at
the
sole cost and expense of Mortgagor, release its lien on that portion of the
Mortgaged Property owned by TDS Amenities, Inc. which is not the TDS Property
(“TDS
Remainder Property”);
provided,
however,
that in
addition to the Cash Collateral, the Mortgagor shall provide to Mortgagee,
(a)
written evidence, satisfactory to Mortgagee in its reasonable discretion, that
the completion of the Project (as defined in the Loan Agreement), the resort
water complex (including a wave pool, flowrider surfing pool, water slides,
spas
and a four-story children’s water park) and the 16,000 square foot pool-side
sports bar (collectively, “Amenities”), each of which shall be located on or
adjacent to the Mortgaged Property, shall be partially financed in an amount
of
no less than $5,800,000 (i.e. $2,900,000 plus the Cash Collateral) by an
institutional lender, (b) documentation evidencing that the swimming pool on
the
TDS Remainder Property will be constructed, to Mortgagee’s reasonable
satisfaction, in accordance with the plans and specifications provided to
Mortgagor by Mortgagee and the contract submitted to Mortgagee from Xxxxxx
Pools, (c) written evidence that the owners of all or any portion of the
remainder of the Mortgaged Property shall have access to, and the ability to
use, the swimming pool constructed on the TDS Remainder Property and the other
Amenities pursuant to easements established by the Mortgagor and reasonably
acceptable to Mortgagee, (d) written evidence that Mortgagee shall have
continued access into and across the TDS Remainder Property pursuant to
easements established by the Mortgagor and reasonably acceptable to Mortgagee
to
complete the Project, if necessary, (e) such other documents as may be required
by Mortgagee in its reasonable discretion, and (f) written evidence that the
construction contract submitted to Mortgagee from Xxxxxx Pools to complete
the
Project is still in full force and effect.
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The
Cash
Collateral shall be held by Mortgagee as additional security for (1) the
repayment of the Loan and the Costa I Loan, (2) the repayment of all obligations
owed to Mortgagee pursuant to the Loan Documents and the Costa I Loan
Documents, and (3) the completion of the Project, and shall be disbursed
to
Mortgagor or Costa I, as applicable, in accordance with the terms and conditions
of Sections 2(e) and 2(j) of the Loan Agreement or Sections 2(e) and 2(j)
of the
Costa I Loan Agreement, as applicable.
Notwithstanding
the foregoing, upon an Event of Default, Mortgagee may, in its sole discretion,
apply all or any portion of the Cash Collateral to any outstanding payment,
sum
or obligation of Mortgagor under the Loan Documents or the Costa I Loan
Documents, including without limitation, the completion of the
Project.”
3. Original
Mortgage.
Mortgagor acknowledges and agrees that the Original Mortgage is in full force
and effect as of the date hereof.
4. Integration
of Amendment and Original Mortgage.
From and after the effective date of this Amendment, the Original Mortgage
and
this Amendment shall be read as one agreement. Except as set forth in this
Amendment, all other terms and conditions of the Original Mortgage are not
being
modified or amended, and shall remain in full force and effect.
5. Counterparts.
This
Amendment may be executed in any number of counterparts, and each when so
executed and delivered shall be an original, but all the counterparts shall
together constitute one and the same instrument.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, Mortgagor has executed this First Amendment to Mortgage and
Security Agreement as of the date first above written.
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WITNESS:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
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MORTGAGOR:
COSTA
XXXXXX XX REAL ESTATE, LLC,
a
Florida limited liability company
By:
Tierra del Sol Resort (Phase 2), Ltd., a Florida limited partnership,
its
manager
By:
TDS Management, LLC, a Florida limited liability company, its general
partner
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Manager
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WITNESS:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
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MORTGAGOR:
XXXXX
XXXXXX III REAL ESTATE, LLC,
a
Florida limited liability company
By:
Tierra del Sol Resort (Phase 2), Ltd., a Florida limited partnership,
its
manager
By:
TDS Management, LLC, a Florida limited liability company, its general
partner
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Manager
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WITNESS:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
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MORTGAGOR:
TDS
TOWN HOMES (PHASE 1), LLC,
a
Florida limited liability company
By:
Tierra del Sol Resort (Phase 1), Ltd., a Florida limited partnership,
its
manager
By:
TDS Management, LLC, a Florida limited liability company, its general
partner
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Manager
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WITNESS:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
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MORTGAGOR:
TDS
TOWN HOMES (PHASE 2), LLC,
a
Florida limited liability company
By:
Tierra del Sol Resort (Phase 2), Ltd., a Florida limited partnership,
its
manager
By:
TDS Management, LLC, a Florida limited liability company, its general
partner
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Manager
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WITNESS:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
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MORTGAGOR:
TDS
AMENITIES, INC.
a
Florida corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Chief Executive Officer
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STATE
OF FLORIDA
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)
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)
ss.:
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COUNTY
OF ORANGE
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)
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I
certify
that on June 20th, 2007, Xxxxxxx X. Xxxxxx came before me in person and
stated to my satisfaction that he/she:
(a) made
the
attached instrument; and
(b) was
authorized to and did execute this instrument on behalf of and as Manager of
TDS
MANAGEMENT, LLC, a Florida limited liability company, the General Partner of
TIERRA DEL SOL RESORT (PHASE 2), LTD., a Florida limited partnership, the
Manager of COSTA XXXXXX XX REAL ESTATE, LLC, a Florida limited liability company
(the “Company”), the entity named in this instrument, as the free act and deed
of the Company, by virtue of the authority granted by its operating agreement
and its members.
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/s/
X.X. Xxxxxx
NOTARY
PUBLIC
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-7-
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STATE
OF FLORIDA
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)
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)
ss.:
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COUNTY
OF ORANGE
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)
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I
certify
that on June 20th, 2007, Xxxxxxx X. Xxxxxx came before me in person and stated
to my satisfaction that he/she:
(a)
made
the
attached instrument; and
(b)
was
authorized to and did execute this instrument on behalf of and as Manager of
TDS
MANAGEMENT, LLC, a Florida limited liability company, the General Partner of
TIERRA DEL SOL RESORT (PHASE 2), LTD., a Florida limited partnership, the
Manager of XXXXX XXXXXX III REAL ESTATE, LLC, a Florida limited liability
company (the “Company”), the entity named in this instrument, as the free act
and deed of the Company, by virtue of the authority granted by its operating
agreement and its members.
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/s/
X.X. Xxxxxx
NOTARY
PUBLIC
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STATE
OF FLORIDA
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)
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|
)
ss.:
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|
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COUNTY
OF ORANGE
|
)
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I
certify
that on June 20th, 2007, Xxxxxxx X. Xxxxxx came before me in person and
stated to my satisfaction that he/she:
(a) made
the
attached instrument; and
(b) was
authorized to and did execute this instrument on behalf of and as Manager of
TDS
MANAGEMENT, LLC, a Florida limited liability company, the General Partner of
TIERRA DEL SOL RESORT (PHASE 1), LTD., a Florida limited partnership, the
Manager of TDS TOWN HOMES (PHASE 1), LLC, a Florida limited liability company
(the “Company”), the entity named in this instrument, as the free act and deed
of the Company, by virtue of the authority granted by its operating agreement
and its members.
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/s/
X.X. Xxxxxx
NOTARY
PUBLIC
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-8-
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STATE
OF FLORIDA
|
)
|
|
)
ss.:
|
|
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COUNTY
OF
|
)
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I
certify
that on June 20th, 2007, Xxxxxxx X. Xxxxxx came before me in person and
stated to my satisfaction that he/she:
(a)
made
the
attached instrument; and
(b)
was
authorized to and did execute this instrument on behalf of and as Manager of
TDS
MANAGEMENT, LLC, a Florida limited liability company, the General Partner of
TIERRA DEL SOL RESORT (PHASE 2), LTD., a Florida limited partnership, the
Manager of TDS TOWN HOMES (PHASE 2), LLC, a Florida limited liability company
(the “Company”), the entity named in this instrument, as the free act and deed
of the Company, by virtue of the authority granted by its operating agreement
and its members.
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/s/
X.X. Xxxxxx
NOTARY
PUBLIC
|
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STATE
OF FLORIDA
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF ORANGE
|
)
|
I
certify
that on June 20th, 2007, Xxxxxxx X. Xxxxxx came before me in person and
stated to my satisfaction that he/she:
(a)
made
the
attached instrument; and
(b)
was
authorized to and did execute this instrument on behalf of and as Chief
Executive Officer of TDS AMENITIES, INC., a Florida corporation (the “Company”),
the entity named in this instrument, as the free act and deed of the Company,
by
virtue of the authority granted by its bylaws and its board of
directors.
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/s/
X.X. Xxxxxx
NOTARY
PUBLIC
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