Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxx & Xxxx, P.A.
000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
File No. 014523.0019
____________________Space above this line for recording data.)__________________
THIS INSTRUMENT MODIFIES AND AMENDS THAT CERTAIN MORTGAGE DEED AND SECURITY
AGREEMENT DATED FEBRUARY 3, 2000 AND RECORDED FEBRUARY 8, 2003 IN O.R. BOOK
4399, PAGE 746 OF THE PUBLIC RECORDS OF POLK COUNTY, FLORIDA. DOCUMENTARY STAMPS
AND INTANGIBLE TAXES ON THE ORIGINAL INDEBTEDNESS OF $2,515,000.00 WERE PAID IN
FULL AND AFFIXED TO THE MORTGAGE.
THIS IS A BALLOON MORTGAGE AND THE FINAL PAYMENT OR PRINCIPAL BALANCE DUE UPON
MATURITY IS $2,515,000.00 TOGETHER WITH ACCRUED INTEREST, AND ALL ADVANCEMENTS
MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE
MORTGAGE MODIFICATION AND RESTATEMENT AGREEMENT
THIS MORTGAGE MODIFICATION AND RESTATEMENT AGREEMENT is made this ___ day
of December, 2003, by and between SUNSTONE GOLF RESORT, INC., a Florida
corporation, with a post office address of 0000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx
00000 (hereinafter referred to as "Mortgagor"), and STANFORD VENTURE CAPITAL
HOLDINGS, INC., a Delaware corporation, with a post office address at 0000
Xxxxxxxxxx, Xxxxxxx, Xxxxx 00000 (hereinafter referred to as "Mortgagee").
W I T N E S S E T H:
WHEREAS, Xxxxxxxxx is the owner and holder of that certain Promissory Note
in the original principal amount of TWO MILLION FIVE HUNDRED FIFTEEN THOUSAND
DOLLARS ($2,515,000.00) executed by Sunstone Golf Resort, Inc., a Florida
corporation ("Mortgagor") in favor of Arvimex, Inc., a Panamanian corporation
("Arvimex"), dated January 31, 2000, as amended by that certain Note and
Mortgage Modification Agreement dated March 31, 2003 (together, the "Note"); and
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WHEREAS, the Note is secured by that certain Mortgage Deed executed by
Xxxxxxxxx, in favor of Arvimex dated February 3, 2000 and recorded in Official
Records Book 4399, Page 746 of the Public Records of Polk County, Florida, as
amended by that certain Note and Mortgage Modification Agreement dated March 31,
2003 and recorded in Official Records Book 5311, Page 221 of the Public Records
of Polk County, Florida (together, the "Mortgage"); and
WHEREAS, the Mortgage encumbers certain real property located in Polk
County, Florida as more particularly described in the Mortgage (the "Mortgaged
Property" or "Premises"); the legal description of the real property being set
forth on EXHIBIT "A" attached hereto and made a part hereof; and
WHEREAS, Mortgagee is lending Mortgagor the sum of Six Million Dollars
($6,000,000.00) pursuant to that certain Credit Agreement of even date herewith
entered into by and among AMERICAN LEISURE HOLDINGS, INC., a Nevada corporation,
SUNSTONE GOLF RESORT, INC., a Florida corporation, AMERICAN LEISURE MARKETING &
TECHNOLOGY, INC., a Florida corporation, ADVANTAGE PROFESSIONAL MANAGEMENT GROUP
INC., a Florida corporation, LEISURESHARE INTERNATIONAL LIMITED., a United
Kingdom corporation, CARIBBEAN LEISURE MARKETING LIMITED, an Antiguan limited
company (individually, a "Borrower" and collectively, "Borrowers"), XXXXXXX
XXXXXX, as "Individual Guarantor", and Mortgagee as "Lender", and as security
for the due observance and performance of the covenants and obligations of
Borrowers set forth in the Credit Agreement, has agreed to accept the assignment
of all of the right, title and interest in and to the Note and the Mortgage held
and owned by ARVIMEX, INC., a Panamanian corporation ("Assignor"), provided that
the Mortgagor executes and delivers this Mortgage Modification and Restatement
Agreement as further security for the full and punctual payment of said Note,
and of any renewal or extension of said Note, and the full performance of all
the provisions, agreements and covenants therein and herein contained; and
WHEREAS Assignor has assigned all of its right, title and interest in and
to the Note and the Mortgage by virtue of that certain Assignment of Note and
Mortgage dated as of even date herewith, and recorded in Official Records
Book_____, Page____ of the Public Records of Polk County, Florida (the
"Assignment"),
WHEREAS, Xxxxxxxxx acknowledges that Mortgagee would not have entered into
the Credit Agreement or accepted the Assignment unless Xxxxxxxxx executed and
delivered this Mortgage Modification and Restatement Agreement to Mortgagee.
Xxxxxxxxx further acknowledges that Xxxxxxxxx will benefit from the making of
the loan contemplated to be made pursuant to the Credit Agreement, and has
otherwise received sufficient and adequate consideration for executing this
Mortgage Modification and Restatement Agreement with Mortgagee.
NOW THEREFORE, in consideration of the mutual covenants and agreements of
Mortgagor and Mortgagee, the sum of TEN DOLLARS, ($10.00) and other good and
valuable consideration, each to the other in hand paid, the receipt and
sufficiency of which are hereby acknowledged, Mortgagor and Mortgagee hereby
agree as follows:
1. RECITALS.
The foregoing recitations are true and correct and comprise a part of this
Agreement.
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2. MODIFICATION AND RESTATEMENT.
The terms, conditions, provisions, covenants, agreements, warranties and
privileges including and not by way of limitation prepayment privileges if any,
contained in the Mortgage, as amended, are hereby modified, and amended in their
entirety and restated on the terms of the mortgage attached hereto as EXHIBIT
"B" and, as so modified, amended, and restated are hereby ratified, confirmed
and approved. The security of such note, bond and other evidence of indebtedness
and the Original Mortgage, as amended, shall not be impaired by anything herein
contained, but whenever the terms, provisions, covenants and conditions of this
instrument conflict in any way with the terms, provisions, covenants and
conditions of the note, bonds or other evidence of indebtedness and/or the
Mortgage or any of them, the terms, provisions, covenants and conditions of this
instrument shall control and prevail. This instrument secures the principal sum
of TWO MILLION FIVE HUNDRED FIFTEEN THOUSAND AND NO/100 DOLLARS ($2,515,000.00)
plus accrued interest thereon, in lawful money of the United States, to be paid
pursuant to the terms of the Note, and any further modifications,
consolidations, extensions, renewals, restatements, and replacement thereof.
3. Xxxxxxxxx agrees to pay any and all documentary stamp tax, intangible tax, or
mortgage tax other similar taxes levied against the Note and Mortgage,
including, without limitation, any and all interest or penalties assessed
thereon, and further agrees to indemnify and hold harmless Mortgagee from and
against any and all loss, cost, expense or liability, including, without
limitation, attorneys' fees and costs, suffered or incurred by Mortgagee by
reason of the levy, assessment or assertion of such taxes, penalties or
interest.
4. Mortgagor hereby acknowledges that the total principal amount due and owing
to Mortgagee to Borrower under the Note is $2,515,000.00 which Mortgagor
acknowledges as its just and true debt to Mortgagee and against which Xxxxxxxxx
has and claims no defenses, rights or offset or counterclaims whatsoever.
5. Mortgagor further warrants and represents that the Note and the Mortgage are
in good standing and free from default and that no event has occurred or failed
to occur which, with the giving of notice or the passage of time or both, would
comprise such a default.
6. Mortgagee and Mortgagor hereby agree that, in consideration of the recitals
and mutual covenants contained herein, and for other good and valuable
consideration, as amended, the receipt and sufficiency of which are hereby
acknowledged, in the event Mortgagor shall (i) file with any bankruptcy court of
competent jurisdiction or be the subject of any petition under Title 11 of the
U.S. Code, as amended, (ii) be the subject of any order for relief issued under
such Title 11 of the U.S. Code, as amended, (iii) file or be the subject of any
petition seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future federal
or state act or law relating to bankruptcy or insolvency, (iv) have a sought,
consented to or acquiesced in the appointment of any trustee, receiver,
conservator, or liquidator, (v) be the subject of any order, judgment, or decree
entered by any court of competent jurisdiction approving a petition filed
against such party for any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future federal or state act or law relating to bankruptcy, insolvency, or relief
or relief for debtors, Mortgagee shall thereupon be entitled to relief from any
automatic stay imposed by Section 362 of Title 11 of the U.S. Code, as amended,
or otherwise, on or against the exercise of the rights and remedies otherwise
available to Mortgagee as provided in the Note or Mortgage and as otherwise
provided by law against the Premises and other assets on which Mortgagee
currently has a lien under the Mortgage and the other documents given in
connection with the Mortgage and this Agreement.
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7. Except as provided herein, Mortgagee and Mortgagor hereby agree and
acknowledge that nothing herein contained shall in any manner affect, alter,
change, or impair the rights, remedies and security of the Mortgagee as provided
in the Mortgage. It is the intent of the parties hereto that this Agreement
shall not constitute a novation and shall in no way adversely affect the lien of
the Mortgage. In the event that this Agreement, or any part hereof, shall be
construed by a court of competent jurisdiction as operating to affect the lien
priority of the Mortgage over the claims which would otherwise be subordinate
thereto, and upon any such ruling not being appealed or not being appealable,
then to the extent that a third party acquires an interest in the Premises
between the time of execution of the Mortgage and the execution hereof and is
prejudiced hereby, the Mortgage, or such portion hereof as shall be so construed
to affect the lien of the Mortgage, shall be void and of no force or effect, as
to that claim only, and this Agreement shall constitute, as to that claim only,
a lien upon the Premises subordinate to such third party's interest,
incorporating by reference the terms of the Mortgage, and the Mortgage shall
then be enforced pursuant to the terms therein contained, independent of this
Agreement; provided, however, that notwithstanding the foregoing, as between
themselves, Mortgagor and Mortgagee shall be bound by all terms and conditions
hereof until all indebtedness owing to the Mortgagee shall have been paid in
full.
8. No delay by Mortgagee in exercising any right or remedy under the Mortgage or
otherwise afforded by law, shall operate as a waiver thereof or preclude the
exercise thereof during the continuance of any default thereunder. No waiver by
Mortgagee of any default shall constitute a waiver of or consent to subsequent
defaults. No failure of Mortgagee to exercise any option to accelerate maturity
of the debt secured by the Mortgage, no forbearance by Mortgagee before or after
the exercise of such option and no withdrawal or abandonment of foreclosure
proceedings by Mortgagee shall be taken or construed as a waiver of its right to
exercise such option or to accelerate the maturity of the debt by reason of any
past, present or future default on the part of Mortgagor; and, in like manner,
the procurement of insurance or the payment of taxes or other liens or charges
by Mortgagee shall not be taken or construed as a waiver of its right to
accelerate the maturity of the debt by Mortgagee.
9. As a material inducement for Mortgagee to execute this Agreement, Xxxxxxxxx
does hereby waive and release, acquit, satisfy and forever discharge Mortgagee
and its affiliates and assignees from any and all claims, counterclaims,
defenses, actions, causes of action, suits, controversies, agreements, promises
and demands whatsoever in law or in equity which Mortgagor ever had, now has, or
which any personal representative, successor, heir or assign of Mortgagor
hereafter can, shall or may have against Mortgagee, or any of its respective
affiliates, officers, directors, employees, agents and assignees, for upon or by
reason of any matter, cause or thing whatsoever through the date hereof. In
addition to, and without limiting the generality of the foregoing, and in
consideration of Mortgagee's execution of this Agreement, Mortgagor covenants
with and warrants unto Mortgagee, and its affiliates and assignees, that there
exist no claims, counterclaims, defenses, objections, offsets or claims of
offsets against Mortgagee or the joint and several obligation of Mortgagor to
pay the indebtedness evidenced by the Note to Mortgagee when and as the same
becomes due and payable.
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10. Time is of the essence in all matters connected herewith.
11. At any time, and from time to time, upon request by Mortgagee, Xxxxxxxxx
will make, execute and deliver or cause to be made, executed and delivered, to
Mortgagee and where appropriate, to cause to be recorded and/or filed and from
time to time thereafter to be rerecorded and/or refiled at such time and in such
offices or places as shall be deemed desirable by Mortgagee, any and all other
such further mortgages, instruments of further assurances, financing statements,
certificates and other documents as may, in the opinion of Mortgagee, be
necessary or desirable in order to effectuate, complete, perfect or to continue
and preserve:
a. the obligation of Mortgagor under the Note and this Mortgage; and b. the lien
of this Mortgage as a valid lien upon all of the Premises.
Upon any failure by Xxxxxxxxx so to do, Mortgagee may make, execute, record,
file, rerecord and/or refile any and all such Mortgages, financing statements,
instruments, certificates and documents for and in the name of Mortgagor and
Mortgagor hereby irrevocably appoints Mortgagee the agent and attorney in fact
of Mortgagor so to do. The lien hereof will automatically attach without further
act, to all after acquired property of Mortgagor that shall be attached to
and/or used in the operation of the Premises or any part thereof.
12. In case any one or more of the covenants, agreements, terms, conditions or
provisions contained in the Mortgage or in the Note shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining covenants,
agreements, terms, conditions or provisions contained herein and in the Note
shall be in no way affected, prejudiced or disturbed thereby.
13. All notices which are required or permitted hereunder must be in writing
shall be deemed to have been given, delivered or made, as the case may be
(notwithstanding lack of actual receipt by the addressee), (i) when delivered by
personal delivery, or (ii) three (3) business days after having been deposited
in the United States Mail, certified or registered, return receipt requested,
sufficient postage affixed and prepaid, or (iii) one (1) business day after
having been deposited with an expedited overnight courier service (such as, by
way of example, but not limitation, U.S. Express Mail, Federal Espress or
Purolator), with proof of delivery, addressed to the party to whom notice is
intended to be given at the address set forth as follows:
To Mortgagee:
Xxxxxxx Xxxxxxxxxx
Xxxxxxxx Venture Capital Holdings, Inc
0000 Xxxxxxxxxx
Xxxxxxx, Xxxxx 00000
with copy to:
Xxxx Xxxxxx, Esq.
Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxx & Xxxx, P.A.
000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
(000) 000-0000
(000) 000-0000 - Telecopier
Mortgagor:
Sunstone Golf
Resort, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
with copy to:
Xxxx X. Xxxxxx, XX, Esq.
Xxxxx Xxxxxx Xxxxxx Xxxxx & Xxxxx, P.A.
0000 Xxxx Xxxxx Xxxxx Xxxx.,
Xxxxx 0000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
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Any party may change the address to which its notices are sent by giving
the other party written notice of any such change in the manner provided in this
paragraph, but notice of change of address is effective only upon receipt.
Mortgagor shall deliver to Mortgagee, promptly upon receipt of same,
copies of all notices, certificates, documents and instruments received by it
which materially affect any part of the Premises covered hereby, including,
without limitation, notices from any lessee or sublessee claiming that Mortgagor
is in default under any terms of any lease or sublease.
14. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought.
15. Any disputes arising under this Mortgage executed shall be governed by and
construed in accordance with the law of the State of Florida.
16. XXXXXXXXX AND MORTGAGEE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
(INCLUDING BUT NOT LIMITED TO, ANY CLAIMS, CROSS-CLAIMS OR THIRD-PARTY CLAIMS)
BASED HEREON OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS MORTGAGE OR
ANY DOCUMENT EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.
XXXXXXXXX XXXXXX CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF MORTGAGEE OR
MORTGAGEE'S COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT MORTGAGEE
WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT
TO JURY TRIAL PROVISION. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE
MORTGAGEE ACCEPTING THIS MORTGAGE AND MAKING ANY LOAN, ADVANCE OR OTHER
EXTENSION OF CREDIT TO THE MORTGAGOR AND SHALL SURVIVE DURING THE ENTIRE TIME
THAT ANY AMOUNT OF THE NOTE SHALL REMAIN UNPAID.
IN WITNESS WHEREOF, Xxxxxxxxx and Mortgagee have hereunto executed these
presents under seal the day, month and year first above written.
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THIS IS A BALLOON MORTGAGE AND THE FINAL PAYMENT OR PRINCIPAL BALANCE DUE UPON
MATURITY IS $2,515,000.00 TOGETHER WITH ACCRUED INTEREST, AND ALL ADVANCEMENTS
MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE.
Signed, sealed and delivered
in the presence of: SUNSTONE GOLF
RESORT, INC., a Florida corporation
_____________________________ By:________________________________
Signature of witness Xxxxxxx
_____________________________ Xxxxxx, President
Printed name of witness
_____________________________
Signature of witness
_____________________________
Printed name of witness
STANFORD VENTURE CAPITAL HOLDINGS, INC.,
a Delaware corporation
_____________________________ By:_________________________________
Signature of witness Its:________________________________
_____________________________
Printed name of witness
_____________________________
Signature of witness
_____________________________
Printed name of witness
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(Signature of Notary)
(Print Name of Notary)
My Commission expires:___
STATE OF FLORIDA
COUNTY OF _________________
The foregoing instrument was acknowledged before me this ____ day of
December, 2003 by XXXXXXX XXXXXX, as President of SUNSTONE GOLF RESORT, INC., a
Florida corporation, on behalf of the corporation. Such person is personally
known to me (YES) (NO) or has produced ___________________________ as
identification.
___________________________
(Signature of Notary)
___________________________
(Print Name of Notary)
My commission expires:_______
EXHIBIT "A"
That part of Section 25, Township 25 South, Range 26 East, Polk County,
Florida, lying East of U.S. Highway 27, LESS & EXCEPT the North 1150.35
feet thereof, and LESS & EXCEPT the Maintained Right of Way for Tri-County
Road #2.
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