FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS
Exhibit
10.6
FIRST
AMENDMENT TO LOAN AND SECURITY AGREEMENT AND OTHER LOAN
DOCUMENTS
THIS
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS
(“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, “Borrower”),
and
XXXXXXX
FUNDING, INC.
(“Agent”), a New Jersey corporation having an address at Xxx Xxxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000, as agent for certain lenders identified
on Schedule
D
of the
Original Loan Agreement (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 Agent and lenders are hereinafter collectively
referred to as “Lender”).
Borrower and Lender may hereinafter be referred to at times individually as
a
“Party”
and
collectively as the “Parties”.
WITNESSETH:
WHEREAS,
Borrower
and Lender are parties to that certain Loan and Security Agreement dated as
of
April 20, 2007 (“Original
Security Agreement”),
and
Borrower is a party to that certain (i) Assignment of Leases and Rents
(“Original
Assignment of Leases and Rents”),
and
(ii) Assignment of Licenses, Contracts, Plans, Specifications, Surveys, Drawings
and Reports (“Original
Assignment of Licenses”),
each
dated as of April 20, 2007 (collectively, the “Original
Loan Agreements”);
and
WHEREAS,
Borrower
and Lender wish to amend the Original Loan Agreements as set forth
below.
NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements contained in the Original
Loan Agreements, 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 10(s) of the Original Security Agreement.
1
“(s)
an
Event of Default (beyond any applicable grace periods) under that certain
Loan
and Security Agreement dated as of June 26, 2007, between Xxxxx
Xxxxxx I Real Estate, LLC, a Florida limited liability company and
Lender,as
Agent
and/or any other document or agreement given or delivered to Lender in
connection therewith, including without limitation that certain Promissory
Note
in the original principal amount of Four Million Four Hundred Fifty Thousand
($4,450,000) Dollars of even date therewith.”
2. From
and
after the effective date of this Amendment, the following text is hereby added
as (i) a new Section 28 of the Original Security Agreement, (ii) a new Section
21 to the Original Assignment of Licenses, and (iii) a new Section 12 to the
Original Assignment of Leases and Rents.
“Cross
Collateralization.
Borrower
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 (“Costa
I”)
and
Lender, as Agent (the “Costa
I Loan”).
It is
understood and agreed that a default (beyond any applicable periods) under
the
terms and conditions of (i) that certain Loan and Security Agreement dated
as of
June 26, 2007, between Xxxxx
Xxxxxx I Real Estate, LLC and Lender, as Agent (“Costa
I Loan Agreement”),
and/or (ii) any other document or agreement given or delivered to Lender 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 Lender to all rights and remedies available to Lender under the Costa
I
Loan Documents. It is further understood and agreed that in the event Borrower
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, Lender shall have the right to declare the Costa I Loan in default
and
accelerate same and avail itself of any rights and remedies thereunder. Borrower
shall execute any and all documents necessary to effectuate such
cross-collateralization.”
2
3. From
and
after the effective date of this Amendment, Section 13 of the Original Security
Agreement is deleted in its entirety and replaced with the following
text.
“13.
Lender’s
Right to Assign.
Lender
shall have the right to sell, assign, participate, transfer or dispose of all
or
any part of its interest in the Loan without the consent or approval of Borrower
or Guarantor.
4. From
and
after the effective date of this Amendment, Section 20(d) of the Original
Security Agreement is deleted in its entirety and replaced with the following
text.
“(d)
The
parties hereto agree that, notwithstanding anything contained herein to the
contrary, there shall be required the consent of the Agent, Borrower and Lenders
holding Fifty Percent (50%) of the outstanding balance or commitment to lend
under the Loan to do any of the following:
(1)
Amend
of
modify the terms of the Note, this Agreement, the Mortgage and the other Loan
Documents or execute any waiver of any material event of default under this
Agreement or the other Loan Documents.
(2) Consent
to or permit any substitution, withdrawal or release of any collateral, any
Guarantor or any other security securing the payment of the Loan except in
accordance with the terms of the Note, this Agreement and the Loan
Documents.”
5. From
and
after the effective date of this Amendment, Section 24 of the Original Security
Agreement is deleted in its entirety and replaced with the following
text.
“(a)
With
the
prior written consent of Borrower, which consent shall not be unreasonably
withheld, conditioned or delayed, Lender shall have the right to issue news
releases, and publicize and/or advertise the fact that it has provided financing
with respect to the project and/or the Mortgaged Property and in connection
therewith Lender shall have the right to photograph and use pictures of the
Mortgaged Property in any such advertisements, brochures, print, media and
other
copy.
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(b) With
the
prior written consent of Borrower, which consent shall not be unreasonably
withheld, conditioned or delayed, Borrower, at Lender’s cost and expense, shall
erect a suitable sign or signs at the Mortgaged Property (“Sign”)
in a
location which is clearly visible to the public and otherwise reasonably
acceptable to Lender. The Sign shall be prepared by Lender and may contain,
among other things, that financing for the Mortgaged Property is being provided
by Lender and otherwise publicize Lender’s role in the financing. Lender shall
coordinate the placement and maintenance of such signs on the Mortgaged Property
with Borrower.”
6. From
and
after the effective date of this Amendment, the following text is hereby added
as a new Section 29 of the Original Security Agreement.
“Each
Borrower acknowledge and agree that the Note may only be prepaid in whole if
either (1) all amounts due and owning to Lender pursuant to the Costa I Loan
Documents are paid in full and no obligations to Lender are outstanding
thereunder, or (2) the Project is fully completed, as determined by Lender
in
its sole discretion, or (3) the Borrower deposits with Lender, in cash, an
amount equal to the greater of (i) the amount of the Holdback, and (ii) the
amount necessary to complete the Project, as determined by Lender in its
reasonable discretion (“Cash
Collateral”).
Notwithstanding
the foregoing, in the event the Borrower deposit the Cash Collateral with
Lender, 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 grace periods, Lender shall,
at the sole cost and expense of the Borrower, release its lien on that portion
of the Mortgaged Property owned by TDS Amenities, Inc. which is not the TDS
Property (“TDS
Remainder Parcel”);
provided,
however,
that in
addition to the Cash Collateral, the Borrower shall provide to Lender, (a)
written evidence, satisfactory to Lender in its reasonable discretion, that
the
completion of the Project, 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 and the Cash Collateral) by an institutional lender, (b)
documentation evidencing that the swimming pool on the TDS Remainder Parcel
will
be constructed, to Lender’s reasonable satisfaction, in accordance with the
plans and specifications provided to Lender by Borrower and the contract
submitted to Lender 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
Parcel and the other Amenities pursuant to easements established by Borrower
and
reasonably acceptable to Lender, (d) written evidence that Lender shall have
continued access into and across the TDS Remainder Parcel pursuant to easements
established by Borrower and reasonably acceptable to Lender to complete the
Project, if necessary, (e) such other documents as may be required by Lender
in
its reasonable discretion, and (f) written evidence that the construction
contract submitted to Lender from Xxxxxx Pools to complete the Project is still
in full force and effect.
4
The
Cash
Collateral shall be held by Lender as additional security for (1) the repayment
of the Loan and the Costa I Loan, (2) the repayment of all obligations owed
to
Lender pursuant to the Loan Documents and the Costa I Loan Documents, and (3)
the completion of the Project, and shall be disbursed to Borrowers or Costa
I,
as applicable, in accordance with the terms and conditions of this Section
29
and Section 2(e) of this Agreement and Sections 2(e) and 2(j) of the Costa
I
Loan Agreement, as applicable.
In
the
event the Cash Collateral is deposited with Lender, the Borrower and Lender
each
acknowledge and agree that Lender shall not be required to make any further
Advances of the Holdback to the Borrower in connection with the Project.
However, notwithstanding the foregoing, the Borrower shall be permitted future
Advances of the Holdback to reimburse Borrower for construction costs incurred
by Borrower in connection with the construction of certain infrastructure on
the
Mortgaged Property, as such construction is approved by Lender in its reasonable
discretion; provided,
however,
that
any future Advance of the Holdback in connection with the completion of
infrastructure on the Mortgaged Property shall be disbursed to Borrower in
accordance with the terms and conditions of this Section 29 and Section 2(e)
of
this Agreement.
Notwithstanding
the foregoing or anything contained herein to the
contrary, upon an Event of Default, Lender may, in its sole discretion, apply
all or any portion of the Cash Collateral to any outstanding payment, sum or
obligation of Borrower under the Loan Documents or the Costa I Loan Documents,
including without limitation, the completion of the Project.”
5
7. From
and
after the effective date of this Amendment, the following text is hereby added
as a new Section 4(a)(11) of the Original Security Agreement.
“(11)
any
and all deposits (whether held in escrow or not) given to the Borrowers in
connection with those certain Purchase Agreements for townhouses and
condominiums on the Mortgaged Property.”
8. From
and
after the effective date of this Amendment, Section 23(d) of the Original
Security Agreement is deleted in its entirety.
9. From
and
after the effective date of this Amendment, the following text is hereby added
after the word “Mortgaged Property” in Section 2(d) of the Original Assignment
of Licenses.
“or
in
connection with the purchase and sale of any townhouses or condominiums to
be
constructed on the Mortgaged Property,”
10. Integration
of Amendment and Original Loan Agreements.
From and after the effective date of this Amendment, each Original Loan
Agreement and this Amendment shall be read as one agreement. Except as set
forth in this Amendment, all other terms and conditions of the Original Loan
Agreements are not being modified or amended, and shall remain in full force
and
effect.
11. 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,
the
Parties have executed this First Amendment to Loan and Security Agreement and
other Loan Documents as of the day and year first above written.
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WITNESS:
_______________________________
Print
Name:
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LENDER:
XXXXXXX
FUNDING, INC.,
as Agent
By:_________________________________
Name:
Title:
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WITNESS:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
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BORROWER:
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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BORROWER:
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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BORROWER:
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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BORROWER:
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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STATE
OF NEW JERSEY
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)
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)
ss.:
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COUNTY
OF BERGEN
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)
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I
certify
that on June ___, 2007, ____________ personally came before me and this person
acknowledged under oath, to my satisfaction, that he:
(a) executed
the attached Loan and Security Agreement; and
(b) was
authorized to and did execute the attached Loan and Security Agreement on behalf
of and as _______________ of Xxxxxxx Funding, Inc., the entity named in this
instrument, by virtue of authority granted by its bylaws and board of
directors.
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NOTARY PUBLIC
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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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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
|
)
|
|
)
ss.:
|
|
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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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