Exhibit 10.36
MORTGAGE AND NOTE MODIFICATION AGREEMENT
THIS AGREEMENT made and entered into this 22nd_ day of January, 1997 by and
between the TRUSTEE OF THE M.B. CO., INC. PENSION PLAN, the TRUSTEE OF E
MENSWEAR-BOYSWEAR CO., INC. PENSION PLAN, the TRUSTEE OF THE XXXXXXXX XXXXX
REVOCABLE TRUST, XXXXXXX XXXXXX, the TRUSTEE OF THE XXXXXX X. XXXXX CO., INC.
EMPLOYEES PROFIT SHARING FUND, and XXXXXX X. XXXXXX, with offices located at
0000 Xxxxx Xxxxx Xxxx, Xxxxxx Xxxxx, XX 00000 (hereinafter referred to as
"Mortgagee") and OCEAN PALMS COOPERATIVE ASSOCIATION, INC., a Florida not-for
profit corporation, with offices located at 0000 Xxxxx Xxxxx Xxxx., Xxxxxxx
Xxxxx, X 00000 (hereinafter collectively referred to as "Mortgagor");
WITNESSETH:
WHEREAS, Lucaya Beach Hotel Corporation heretofore executed and
delivered to Del-Aire Management Co., Inc. a certain promissory note
dated the 26th day of February, 1992 in the original principal amount of
ONE MILLION TWO-HUNDRED THOUSAND DOLLARS ($1,200,000.00) (the "Note");
and
WHEREAS, The (Pounds) Note is secured by that certain Purchase Money
Leasehold Mortgage and Security Agreement made by Lucaya Beach Hotel
Corporation in favor of Del-Aire Management Co~, Inc. dated the 26th day
of February 1992, and recorded the 28th day of February, 1992 in
Official Records Book 19218, Page 815, of the Public Records of Broward
County, Florida (the "Mortgage"), which Mortgage encumbers lands more
particularly described in Exhibit "A" attached hereto and by reference
made a part hereof, lying, being and situate in Broward County, Florida
(the "Property"); and
WHEREAS, Mortgagee is the owner and holder of the Note and the Mortgage,
having obtained same by Assignment of Mortgage dated the 28th day of
May, 1993 and recorded in Official Records book 21050, Page 330, of the
Public records of Broward County, Florida; and
WHEREAS, Mortgagor, by virtue of that certain Assignment of Lease dated
October 29, 1996 and recorded November 13, 1996 in Official Records Book
25644, Page 806, of the Public Records of Broward County, Florida, and
with the consent of Mortgagee, did succeed to the interest of Lucaya
Beach Hotel Corporation in the Property;
WHEREAS, Mortgagor and Mortgagee desire to modify the Mortgage and Note
in certain particulars;
NOW, THEREFORE, in consideration of the mutual benefits accruing to the
respective parties under the provisions of this Agreement it is hereby
agreed as follows:
1. Recitals. The foregoing recitals are true and Correct and are
incorporated herein by reference as though set out in full.
2. Outstanding Principal Balance. As of the date hereof the outstanding
principal balance of the Note (including the $100,000.00 readvancement
made on or about December 20, 1996) is $ 1,158,000.00, the January, 1997
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payment having been received by Mortgagee and credited. The next payment
under the Note and Mortgage is due on February 1, 1997.
3. Interest Rate; Maturity Date; Payment. From and after the 29th day of
October, 1996, the interest rate recited in the Note is increased to
Twelve and Three-quarters percent (12.75%); and the maturity date of the
Note is extended to April 1, 1997. In addition, the monthly payment due
under the Note to and through the maturity date is increased
to $12,303.75.
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4. Option To Extend. Mortgagor shall have the right and option to extend
the Note and Mortgage for three (3) consecutive extension periods of one
(1) year each (subject to payment of an annual extension fee in an
amount equal to one percent (1%) of the then outstanding principal
balance of the Note (but not including that portion of the then
outstanding principal balance of the Note which represents the aforesaid
$ 100.000.00 readvancement made on or about December 20, 1996), said
extension fee to be due and payable on or before March 1 each year prior
to the commencement of each extension period); so that said Note and
Mortgage will become all due and payable on the 1st day of April, 1998
(if the first extension is exercised), on the 1st day of April, 1999 (if
the second extension is also exercised), and on the 1st day of April,
2000 (if the third extension is also exercised). In order to exercise
the aforesaid right and option Mortgagor shall, on or before March 1 of
each year prior to the commencement of each extension period, notice the
Mortgagee in writing of Mortgagee's election to exercise the right and
option and, in each such case, such written notice must be accompanied
by the aforesaid appropriate extension fee.
5. Sub-leasing Attornment; Non-disturbance. Notwithstanding anything to
the contrary contained in the Mortgage, Mortgagor shall have the right
to sub-lease individual apartments and commercial spaces on the property
to such sub-tenants and upon such terms and conditions (including, but
not limited to, non-recourse terms) and pursuant to such form of sub-
lease as Mortgagor may from time to time determine (and to modify and
amend such sub-leases as Mortgagor may from time to time determine);
provided that any such sub-lease shall be subordinate to the lien of the
Mortgage; and provided further that each such sub-lease shall provide
that in the event of a default by Mortgagor and the enforcement by
Mortgagee of any remedy under the Mortgage, the tenant under any such
sub-lease shall at Mortgagee's request attorn to Mortgagee or to any
other person or entity succeeding to the interest of Mortgagee as a
result of such enforcement and shall recognize Mortgagee or such
successor in interest as sub-landlord under the sub-lease without change
in the provisions thereof (provided, however, that Mortgagee or such
successor in interest shall not be bound by (a), any payment of an
installment of rent or additional rent which may have been made more
than thirty days before the due date of such installment, or (b) any
existing offsets or defenses. In addition Mortgagee shall and does
hereby agree to execute and deliver a non-disturbance agreement (in form
and content reasonably acceptable to Mortgagor and its counsel) for each
apartment and commercial space upon the Property at the time of the
leasing of each such apartment or
commercial space and upon concurrent Payment to Mortgagee of a non-
disturbance agreement price for each unit sought to be provided with a
non-disturbance agreement (which non-disturbance agreement price when
paid shall be applied, to the extent of the cash portion thereof,
against the principal amount of the Note and Mortgage) in an amount
equal to seventy-five percent (75%) of the purchase price of such
apartment or commercial space lease, but only where the sale of such
apartment or commercial space lease is the result of a bona fide arms
length transaction; and such non-disturbance agreement price shall be
payable in cash or in purchase money obligations of the apartment or
commercial space tenant, or in any combination thereof (provided that
such portions thereof as are paid in purchase money obligations shall be
held by Mortgagee as additional collateral for the Mortgage; and
seventy-five percent (75%) the monthly Proceeds of such purchase money
obligations shall be applied as and when received upon the indebtedness
represented by the Note and Mortgage, first to accrued interest and then
to principal (and the remaining twenty-five percent (25%) thereof shall
be paid over Mortgagee to Mortgagor). Each of the parties comprising
Mortgagee shall and does hereby make, constitute and appoint XXXXXXXX
XXXXX, whose address is 0000 Xxxxx Xxxxx xxxx, Xxxxxx Xxxxx, XX 00000,
its, his or their true and lawful attorney-in-fact for the limited
purpose of executing and delivering and with full power and authority to
execute and deliver, from time to time, the non-disturbance agreements
hereinabove described. The power of attorney herein granted shall
commence and be in full force and effect as of the date of the complete
execution of this instrument and shall remain in full force and effect
thereafter until termination by written notice executed by any one of
the parties comprising Mortgagee, recorded in the Public Records of
Broward County, Florida, and served upon Mortgagor.
6. Escrows for Taxes Insurance and Ground Lease Payments. From and after
the 29th day of October, 1996 Mortgagor will.
.Escrow with Mortgagee's attorney or other acceptable escrow
agent, each month beginning on November 1, 1996 an amount equal to
1/12th of the estimated real estate taxes to be levied against the
Property for the ensuing tax year. Escrowed funds shall be held at
interest for the benefit of Mortgagor.
.Escrow with Mortgagee's attorney or other acceptable escrow
agent, each month beginning on November 1, 1996 an amount equal to
1/12th of the annual lease payment due under the long term lease.
Escrowed funds shall be held at interest for the benefit of Mortgagor.
.Escrow with Mortgagee's attorney or other acceptable escrow
agent, each month beginning on November 1, 1996 an amount equal to
1/12th of the annual premiums for flood, hazard and liability insurance
on the Property. Escrowed funds shall be held at interest for the
benefit of Mortgagor.
7. Transfer. Notwithstanding anything to the contrary contained in the
Mortgage, Mortgagor shall have the right to transfer the Property to a
Florida corporation, partnership, limited partnership or limited
liability company, or to amend the at-tides of incorporation of
Mortgagor or undertake such procedure as may be necessary to convert
Mortgagor from a not-for-profit to a for profit corporation; provided,
however, that no such transfer, amendment and/or conversion shall
relieve Mortgagor of any liability hereunder or jeopardize the status of
the Mortgage as a first or prior lien. And Notwithstanding anything to
the contrary contained in the Mortgage, Mortgagor shall have the right,
Without the consent of Mortgagee, to enter into any agreement regarding
the management and/or operation of the property; provided, however, no
such agreement shall relieve the Mortgagor of any duty, responsibility
or liability hereunder and any such agreement shall contain a Provision
requiring payment of the monthly payment due each month under the Note
and Mortgage before payment each month to the managing entity under any
such management and/or operations agreement.
8. Purchase Money Security Interests. The taking by Mortgagor or a third
party of a purchase money security interest in any sub-lease of an
apartment or commercial space upon the property in Connection with the
sale of any such sub-lease shall not constitute Prohibited secondary
financing under Section 8 of the Mortgage or require the consent of the
Mortgagee; and the enforcement of any such purchase money security
interest shall not fall within the purview of or limitations contained
in said Section 8.
9. First Leasehold Mortgage. Notwithstanding the changes, amendments and
modifications provided herein, and notwithstanding any transfer or
conveyance of the Property by Mortgagor, and notwithstanding any sub-
leasing of individual apartment- and/or commercial spaces upon the
Property, the Mortgage is and will remain a first leasehold mortgage.
10. Modification of Financing Statement. This Mortgage and Note
Modification Agreement shall also constitute a modification of that
certain UCC- 1 financing Statement recorded February 28, 1992 in
Official Records Book 19218, Page 842, of the Public Records of Broward
County, Florida.
11. Full Force and Effect; Conflicts. This modification in made upon the
express agreement and understanding that, except as herein specifically
set forth, the Mortgage and the Note shall remain unmodified and in full
force and effect. In the event of any conflict between the terms and
provisions of the Mortage or Note and the terms and Provisions of this
Mortgage and Note Modification Agreement, the terms and provisions of
this Mortgage and Note Modification Agreement shall take precedence.
12. Binding Effect. This agreement shall be binding upon and inure to
the benefit of the successors and assigns of the respective parties
hereto.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above written.
In the presence of:
Witnesses
/s/ Xxxxx X. Xxxxx MORTGAGEE:
TRUSTEE OF THE M.B. CO., INC.
PENSION PLAN
/s/ Xxxxxxx Xxxxx
XXXXXXX XXXXX, as Trustee /s/ Pearl /s/
Xxxxx Xxxxxx
of the M. B. Co. Inc. Pension Plan
/s/ Xxxxx X. Xxxxx
TRUSTEE OF THE MENSWEAR-
BOYSWEAR CO., INC. PENSION PLAN
/s/ Xxxxx Xxxxxx
/s/ Xxxxxxx Xxxxx
/s/ Xxxxx X. Xxxxx XXXXXXX XXXXX, as Trustee of
The Xxxxxxx Xxxxx Revocable Trust
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
/s/ Xxxxx X. Xxxxx XXXXXXX XXXXXX
TRUSTEE OF THE XXXXXX X. XXXXX
/s/ Xxxxx Xxxxxx CO., INC. Employees Profit
/s/ Xxxxx X. Xxxxx Sharing Fund
/s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, TRUSTEE
/s/ Xxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxx XXXXXX X. XXXXXX
MORTGAGOR:
OCEAN PALMS COOPERATIVE
/s/ Xxxxxxxxx Search ASSOCIATION, INC., a Florida not-for-
profit corporation
/s/ Xxxxxxxx Xxxxxx
By: /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx, President
State of Florida
County of Palm Beach
The foregoing instrument was acknowledged before me this 22 day of January,
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1997, by XXXXXXXX XXXXX as TRUSTEE OF THE M.B. Co., INC. PENSION PLAN who is
personally known to me
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(Signature of Person Taking Acknowledgment)
/s/ Xxxxx X. Means
XXXXX L MEANS
COMMISSION # CC 421559
EXPIRES: Nov. 17, 0000
Xxxxx xx Xxxxxxx
Xxxxxx xx Xxxx Xxxxx
The foregoing instrument was acknowledged before me this 22 day of January,
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1997, by XXXXXXXX XXXXX as TRUSTEE OF MENSWEAR-BOYSWEAR CO., INC. PENSION PLAN
who is personally known to me
-------------------
(Signature of Person Taking Acknowledgment)
/s/ Xxxxx X. Means
XXXXX L MEANS
COMMISSION # CC 421559
EXPIRES: Nov. 17, 0000
Xxxxx xx Xxxxxxx
Xxxxxx xx Xxxx Xxxxx
The foregoing instrument was acknowledged before me this 22 day of January,
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1997, by XXXXXXXX XXXXX as TRUSTEE OF XXXXXXX XXXXX REVOCABLE TRUST, who is
personally known to me
-------------------
(Signature of Person Taking Acknowledgment)
/s/ Xxxxx X. Means
XXXXX L MEANS
COMMISSION # CC 421559
EXPIRES: Nov. 17, 0000
Xxxxx xx Xxxxxxx
Xxxxxx xx Xxxx Xxxxx
The foregoing instrument was acknowledged before me this 22 day of January,
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1997, by XXXXXX X. XXXXXX, as TRUSTEE OF THE XXXXXX X. XXXXX CO., INC.,
EMPLOYEES PROFIT SHARING FUND, who is personally known to me
-------------------
(Signature of Person Taking Acknowledgment)
/s/ Xxxxx X. Means
XXXXX L MEANS
COMMISSION # CC 421559
EXPIRES: Nov. 17, 0000
Xxxxx xx Xxxxxxx
Xxxxxx xx Xxxx Xxxxx
The foregoing instrument was acknowledged before me this 22 day of January,
-------
1997, by XXXXXXX XXXXXX, who is personally known to me
-------------------
(Signature of Person Taking Acknowledgment)
/s/ Xxxxx X. Means
XXXXX L MEANS
COMMISSION # CC 421559
EXPIRES: Nov. 17, 0000
Xxxxx xx Xxxxxxx
Xxxxxx xx Xxxx Xxxxx
The foregoing instrument was acknowledged before me this 23 day of January,
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1997, by XXXXX XXXXXXXX, as President of OCEAN PALMS COOPERATIVE ASSOCIATION,
INC., a Florida not-for-profit corporation, who is personally known to me
-------------------
(Signature of Person Taking Acknowledgment)
/s/ Xxxxxx X. Xxx
XXXXXX X. XXX
COMMISSION # CC 415232
EXPIRES: October 20, 1998
Exhibit "A"
Legal Description
That certain real property being, being and situated in Broward County, Florida,
and more particularly described as follows:
The lessee's interest in a 99 year leasehold created pursuant to lease
dated February 10, 1965 made and entered into by and between Xxxxx X.
Xxxxxx and Xxxx X. Xxxxx, as lessors, and Lighthouse Point Construction
Corp., as lessee, recorded in Official Records Book 2973, Page 677, of
the Public Records of Broward County, Florida, and re-recorded in
Official Records Book 3069, Page 186, of the Public Records of Broward
County, Florida; which leasehold covers the following described real
property; to wit:
Xxxx 00, 00 xxx 00 xx Xxxxx 13 of POMPANO BY THE SEA
RESUBDIVISION, according to the Plat thereof, recorded in Plat Book
1, Page 22 of the Public Records of Broward County, Florida.
TOGETHER WITH that portion of the East one-half of Alta Avenue, lying
West of and adjacent to Lots 14, 15 and 16, in said Block 13.
TOGETHER WITH the following described property:
Begin at the intersection of the Center Line of Alta Avenue with a
westerly extension of the North boundary of Xxx 00, Xxxxx 00 as shown on
the Plat of POMPANO BY THE SEA, as recorded in Plat book 1, Page 22 of
the Public Records of Broward County, Florida; thence Westerly along
said Westerly extension of the North boundary line of said Lot 16 a
distance of 15.91 feet; thence Southerly, making an included angle of
104 degrees, 14', 30" a distance of 123.76 feet; thence Easterly with an
included angle of 75 degrees, 45', 30" a distance of 45.64 feet to the
Center Line of Alta Avenue; thence North along said Center Line a
distance of 120.0 feet more or less to the point of beginning.
