Exhibit 10.3
This Instrument Prepared By:
Record and Return to:
Xxxxxx X. Xxxxxx, Esquire
XXXXXX & XXXX, LLP
0000 Xxxxx xx Xxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
SECOND MORTGAGE MODIFICATION AGREEMENT
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AND FUTURE ADVANCE CERTIFICATE
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THIS SECOND MORTGAGE MODIFICATION AGREEMENT AND FUTURE ADVANCE CERTIFICATE
(this "Agreement") is made as of November 22, 2006, by between XXXXX CREEK
ACQUISITION COMPANY, LLC, a Florida limited liability company, having offices at
000 Xxxxxxxx Xxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxx 00000 ("Mortgagor" or
"Borrower") and STANFORD INTERNATIONAL BANK, LTD., a company organized and
existing under the laws of Antigua, having an office at Xx. 00, Xxxxxxxx Xxxxx,
Xx. Xxxxx, Xxxxxxx, Xxxx Xxxxxx ("Mortgagee" or "Lender").
WITNESSETH:
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A. On July 8, 2005 Mortgagor executed and delivered in favor of
Mortgagee: (i) a Mortgage and Security Agreement (the "Mortgage"), encumbering
certain property situate in Osceola County, Florida (the "Property"), legally
described in Exhibit "A" attached hereto and made a part hereof, which was
recorded in Official Records Book 2855, at Page 1243 of the Public Records of
Osceola County, Florida; (ii) a Assignment of Leases, Rents and Profits,
recorded in Official Records Book 2855, Page 1280, of the Public Records of
Osceola County, Florida (the "Assignment"); and (iii) an UCC-1 Financing
Statement recorded in Official Records Book 2855, Page 1291, of the Public
Records of Osceola County, Florida (the "Financing Statement") for the purpose
of securing a loan (the "Loan") in the original principal amount of Seven
Million One Hundred Fifty Thousand and No/100 Dollars ($7,150,000.00) evidenced
by that certain Promissory Note dated July 8, 2005 executed by Mortgagor in
favor of the Mortgagee (the "Original Note").
B. As additional security for the Original Note, Xxxxxxx X. Xxxxxx and
American Leisure Holdings, Inc., a Nevada corporation (collectively, the
"Guarantor") made, executed and delivered to the Mortgagee that certain
Irrevocable and Unconditional Guaranty of Payment (the "Guaranty") dated July 8,
2005, in favor of the Mortgagee, wherein the Guarantor guaranteed the repayment
of all sums Original Note and Mortgage.
C. On January 5, 2006 Borrower and Guarantor requested that the
Mortgagee make a Eight Hundred Fifty Thousand and No/100 Dollar ($850,000.00)
future advance loan (the "First Future Advance Loan") to the Borrower, which
First Future Advance Loan is (a) evidenced by a Renewed, Amended and Increased
Promissory Note (the "First Future Advance Note") dated as of January 5, 2006,
executed by the Borrower and made payable to the order of Lender, in the face
amount of Eight Million and No/100 Dollars ($8,000,000.00), which First Future
Advance Note represents a consolidation, amendment, restatement and renewal of
the Original Note, and (b) secured by: (i) the Mortgage and the Assignment as
amended by that certain Mortgage Modification Agreement and Future Advance
Certificate made as of January 5, 2006 and recorded on January 18, 2006 in
Official Records Book 3034, at Page 2915 of the Public Records of Osceola
County, Florida (the "First Mortgage Modification Agreement"); (ii) an UCC-1
Financing Statement recorded in Official Records Book 3034, Page at 2921, of the
Public Records of Osceola County, Florida (the "Second Financing Statement");
and (iii) an UCC-3 Financing Statement Amendment recorded in Official Records
Book 3034, at Page 2926, of the Public Records of Osceola County, Florida (the
"Financing Statement Amendment").
D. Borrower and Guarantor have further requested that the Mortgagee make an
additional future advance loan to the Borrower in the amount of a Four Million
Three Hundred Thousand and No/100 Dollar ($4,300,000.00) maturing on January 31,
2007 (the "Second Future Advance Loan"), which Future Advance Loan is (a)
evidenced by a Second Renewed, Amended and Increased Promissory Note (the
"Second Future Advance Note") dated as of November __, 2006, executed by the
Borrower and made payable to the order of Lender, in the face amount of Twelve
Million Three Hundred Thousand and No/100 Dollars ($12,300,000.00), which Second
Future Advance Note represents a consolidation, amendment, restatement and
renewal of the Original Note as renewed, amended and increased by the First
Future Advance Note.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and to induce Mortgagee to agree to the modifications, it is agreed by and
between Mortgagor and Mortgagee as follows:
1. The foregoing recitals are true and correct and hereby incorporated
into this Agreement and made a material part hereof by this express
reference. The Second Future Advance Loan constitutes a future advance
under Section 11.18 of the Mortgage as amended by the First Mortgage
Modification Agreement (the "Amended Mortgage").
2. Mortgagor hereby represents, warrants and covenants to and with
Mortgagee that no default or event of default exists under the Original
Note, the First Future Advance Note, the Amended Mortgage, the Assignment,
the First Mortgage Modification Agreement, or any of the other Loan
Documents, as defined herein below, and that Mortgagor has no claims,
offsets or defenses to its obligations there under. Mortgagor further
represents that it is the owner of the Property.
3. Mortgagor acknowledges and confirms that (i) the Amended Mortgage
constitutes a valid and binding lien on the Property and (ii) the
Assignment and Financing Statements constitute valid and binding security
interests in the property described therein.
4. The lien of the Amended Mortgage and Assignment secures payment of
the indebtedness (the "Indebtedness") of the Second Future Advance Note and
the performance of all obligations under all documents, and all
modifications, extensions, substitutions, and replacements thereof,
executed in connection with the loans evidenced and/or securing Original
Note, the First Future Advance Note, and the Second Future Advance Note
(the "Loan Documents").
5. Mortgagor hereby reaffirms, re-acknowledges and ratifies each and
every of the terms, covenants and conditions of the Loan Documents, and
agrees to remain bound thereby and does hereby assume and agree to pay the
Indebtedness and all interest and other charges contained in the Loan
Documents.
6. It is the intention of the parties hereto that nothing herein shall
constitute a novation of the indebtedness secured by the Mortgage and such
indebtedness shall remain in full force and effect. In addition, the terms
of this Agreement shall not operate to release, alter, impair, diminish,
affect or subordinate the lien, or the priority of the lien, of the
Mortgage, the Assignment, or any other document securing or evidencing
Mortgagor's obligation and indebtedness to Mortgagee.
7. To the extent of any inconsistency or conflict of any provisions
contained in the Amended Mortgage, this Agreement, or other Loan Document,
the provisions or any portion thereof, which in the sole judgment of the
Mortgagor provide for the greatest protection or otherwise operate in the
Mortgagor's best interest shall govern.
8. Mortgagor acknowledges that as of the date of this Agreement, the
Mortgagor has no defenses, counterclaims or claims to rights of offset with
regard to its obligations under the Loan Documents with respect to the
validity and enforceability of any collateral or security interests held by
the Mortgagee evidenced or secured by the Loan Documents.
9. This Agreement shall be binding upon and inure to the benefit of
the Mortgagor, Mortgagee and their respective heirs, personal
representatives, successors and assigns, and the terms and provisions
hereof as well as the representations and warranties contained herein shall
survive the execution and delivery hereof.
10. MORTGAGEE AND MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT
TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION WITH THIS AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE
PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR MORTGAGEE ENTERING
INTO THIS AGREEMENT WITH MORTGAGOR.
IN WITNESS WHEREOF, Mortgagor has caused its name to be hereunto affixed
the day and year first above written.
Signed, sealed and delivered
in the presence of: MORTGAGOR:
/s/ Xxxxx Xxxxxx XXXXX CREEK ACQUISITION, LLC
----------------------------- a Florida limited liability company
Print Name: Xxxxx Xxxxxx
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By: /s/ Xxxxxxx X. Xxxxxx
/s/ Xxxxx Xxxxx ---------------------------------
----------------------------- Xxxxxxx X. Xxxxxx, its Manager
Print Name: Xxxxx Xxxxx
----------------------- (CORPORATE SEAL)
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STATE OF FLORIDA }
} ss:
COUNTY OF MIAMI-DADE }
The foregoing instrument was acknowledged before me this 22nd day of
November, 2006, by Xxxxxxx X. Xxxxxx, as Manager of Xxxxx Creek Acquisition
Company, LLC, a Florida limited liability company, on behalf of the company, and
who is personally known to me or has produced as identification.
/s/ Xxxxx Xxxxx
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Notary Public, State of Florida
Xxxxx Xxxxx
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Printed Name of Notary Public:
Commission # 186389
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EXHIBIT "A"
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LEGAL DESCRIPTION
PARCEL ONE:
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LOTS 3 AND 4, IN THE SOUTHWEST 1/4 OF SECTION 2, TOWNSHIP 25 SOUTH, RANGE 27
EAST, OSCEOLA COUNTY, FLORIDA; LESS THAT PART OF SAID LOT 3 LYING SOUTH OF A
LINE 1819.04 FEET NORTH OF AND PARALLEL WITH THE SOUTH BOUNDARY OF SAID
SOUTHWEST 1/4, ALL IN THE MAP OF FLORIDA FRUIT & TRUCK LAND CO. SUBDIVISION,
ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK "B" PAGE 68, OF THE
PUBLIC RECORDS OF OSCEOLA COUNTY, FLORIDA.
PARCEL TWO:
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THE WEST 1/2 OF THE EAST 1/2 OF THE SOUTHWEST 1/4 OF SECTION 2, TOWNSHIP 25
SOUTH, RANGE 27 EAST, LESS AND EXCEPT THE SOUTH 1336.22 FEET THEREOF, AND LESS
THE NORTH 435.6 FEET OF THE WEST 100 FEET THEREOF, ALL LYING AND BEING IN
OSCEOLA COUNTY, FLORIDA.
TOGETHER WITH THE FOLLOWING EASEMENTS FOR INGRESS AND EGRESS:
PARCEL A:
THAT PORTION OF THE FOLLOWING DESCRIBED LAND, LYING XXXXX XX XXXXX XXXX XX. 000;
FROM THE SOUTHWEST CORNER OF THE WEST 1/2 OF THE EAST 1/2 OF THE SOUTHWEST 1/4
OF SECTION 2, TOWNSHIP 25 SOUTH, RANGE 27 EAST, OSCEOLA COUNTY, FLORIDA, RUN
NORTH 89 43'13" EAST, ALONG THE SOUTH LINE OF SAID SECTION 2, 305.00 FEET TO THE
POINT OF BEGINNING; RUN THENCE NORTH 00 01'20" EAST, PARALLEL TO THE WEST LINE
OF SAID WEST 1/2 OF THE EAST 1/2 OF THE SOUTHWEST 1/4, 850.00 FEET; RUN THENCE
NORTH 89 43'13" EAST, 50.00 FEET; RUN THENCE SOUTH 00 01'20" WEST 850.00 FEET TO
THE SOUTH LINE OF SAID SECTION 2; RUN THENCE SOUTH 89 43'13" WEST, 50.00 FEET TO
THE POINT OF BEGINNING.
PARCEL B:
A STRIP OF LAND 25.0 FEET IN WIDTH EACH SIDE OF THE FOLLOWING DESCRIBED LINE:
FROM THE SOUTHWEST CORNER OF THE WEST 1/2 OF THE EAST 1/2 OF THE SOUTHWEST 1/4
OF SECTION 2, TOWNSHIP 25 SOUTH, RANGE 27 EAST, OSCEOLA COUNTY, FLORIDA, RUN
NORTH 89 43'13" EAST, ALONG THE SOUTH LINE OF SECTION 2, 330.0 FEET; RUN THENCE
NORTH 00 01'20" EAST, PARALLEL TO THE WEST LINE OF SAID WEST 1/2 OF THE EAST 1/2
OF THE SOUTHWEST 1/4, 850.0 FEET TO THE POINT OF BEGINNING; CONTINUE NORTH 00
01'20" EAST, 114.39 FEET TO THE POINT OF A CURVE OF A 75.00 FOOT RADIUS CURVE TO
THE LEFT, HAVING A CENTRAL ANGLE OF 68 01'20"; RUN THENCE ALONG SAID CURVE,
89.04 FEET TO THE POINT OF TANGENT; RUN THENCE NORTH 68 00'00" WEST, 198.67 FEET
TO THE POINT OF A CURVE OF A 110.0 FOOT RADIUS CURVE TO THE RIGHT, HAVING A
CENTRAL ANGLE OF 68 01'20"; RUN THENCE ALONG SAID CURVE, 130.59 FEET TO THE
POINT OF TANGENT; RUN THENCE NORTH 00 01'20" EAST, 124.34 FEET TO THE END OF
SAID LINE.
TOGETHER WITH ALL RIGHTS TO SIGNAGE EASEMENT RESERVED IN THAT CERTAIN DEED
RECORDED AT OFFICIAL RECORDS BOOK 550, PAGE 777, OF THE PUBLIC RECORDS OF
OSCEOLA COUNTY, FLORIDA.
PARCEL THREE:
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BEGIN AT THE SOUTHEAST CORNER OF THE NORTHWEST 1/4 OF SECTION 2, TOWNSHIP 25
SOUTH, RANGE 27 EAST, OSCEOLA COUNTY, FLORIDA, AND RUN N 00 26'22" E, ALONG THE
EAST BOUNDARY OF SAID NORTHWEST 1/4, 500.02 FEET; THENCE RUN S 89 51'41" W,
819.46 FEET; THENCE S 00 01'20" W, 450.00 FEET; THENCE N 89 51'41" E, ALONG A
LINE 50.00 FEET NORTH OF AND PARALLEL WITH THE SOUTH BOUNDARY OF SAID NORTHWEST
1/4 OF SAID SECTION 2, 296.13 FEET TO A POINT OF A CURVATURE OF A NON-TANGENT
CURVE CONCAVE EASTERLY, HAVING A RADIUS OF 840.00 FEET; THENCE SOUTHEASTERLY
ALONG SAID CURVE TO A POINT ON THE SOUTH LINE OF SAID NORTHWEST 1/4 OF SAID
SECTION 2, LYING S 89 51'41" W, 512.10 FEET FROM SAID POINT OF BEGINNING; RUN
THENCE N 89 51'41" E, 512.10 FEET TO THE POINT OF BEGINNING.
