Exhibit 10.51
Obligor # 3369991887
Obligation # 9003000537
PROMISSORY NOTE MODIFICATION AGREEMENT (FL)
THIS PROMISSORY NOTE MODIFICATION AGREEMENT ("Modification") is dated as of
December 7, 2007 but is effective as of December 6, 2007 by and between Homes By
Xxxxxx, LLC ("Borrower" or, if more than one (1), collectively "Borrower") and
NATIONAL CITY BANK, a national banking association ("Bank").
BANK INCLUDES PREDECESSORS. The term "Bank" shall include all entities which
were merged into, or whose name was changed to, National City Bank or a
predecessor thereof, including but not limited to Harbor Federal Savings Bank.
WHEREAS, Bank agreed to lend to Borrower a principal amount not to exceed Four
Million Seven Hundred Ninety Thousand and 00/100 Dollars ($4,790,000.00)
("Loan"), which Loan was evidenced by a certain Promissory Note Modification
Agreement dated July 18, 2007, (as extended, amended or otherwise modified to
date, the "Note") (the Note and any other instrument or document given in
connection with or to secure the Loan being collectively referred to as "Loan
Documents").
WHEREAS, the parties hereto desire to modify the Note as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing promises and the covenants
contained herein, the parties hereto agree as follows:
1. Liability of Borrower. Borrower hereby ratifies and reconfirms Borrower's
obligations and all liability to Bank under the terms and conditions of
the Loan Documents and acknowledges that Borrower has no defenses to or
rights of set-off against Borrower's obligations and all liability to
Bank thereunder. Borrower further acknowledges that Bank has performed
all of Bank's obligations under the Loan Documents.
2. Modification. (a) The principal amount outstanding under the Note as of
the effective date of this Modification is Two Million Two Hundred Forty
Thousand Six Hundred and 17/100 Dollars ($2,240,600.17). The Note is
hereby modified to provide that, effective as of December 6, 2007, the
maximum availability of the Note shall be decreased to the sum of Two
Million Seven Hundred Eighty Nine Thousand Six Hundred Seventy and 00/100
Dollars ($2,789,670.00). In the event that the outstanding principal
balance exceeds the maximum amount, Borrower shall immediately pay to
Bank such excess amount.
(b) The next payment is due December 1, 2007 and monthly, thereafter as
set forth in the Note. Payments prior to the first scheduled payment
above have been made as evidenced by the books and records of Bank.
(c) The Note evidences a revolving loan as to which all advances of
principal under the Note have not been made. The outstanding principal
balance of the Note plus undisbursed advances of principal under the Note
as of the date hereof is $2,789,670.00. This Modification constitutes a
renewal of the Note for the outstanding principal balance of the Note
plus undisbursed advances of principal under the Note as of the date
hereof, without increasing the principal amount equal to the sum of the
outstanding principal balance plus undisbursed principal and without
adding any obligors. Florida documentary stamp tax and nonrecurring
intangibles tax were paid with respect to the Note on a
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mortgage dated December 28, 2005 and recorded in Official Records Book
1977, Page 721, of the Public Records of Indian River County, Florida.
Because this Modification constitutes a renewal of the Note for the
outstanding principal balance of the Note plus undisbursed advances of
principal under the Note as of the date hereof, without increase to the
outstanding principal balance plus undisbursed advances of principal and
without adding any obligors, it is exempt from Florida documentary stamp
tax and nonrecurring intangible taxes pursuant to F.S. 201.09 and F.S.
199.145. The Note is attached to this Modification.
3. Ratification of Loan Documents. The Loan Documents are in all respects
ratified and confirmed by the parties hereto, and each of the Note and
this Modification shall be read, taken and construed as one and the same
instrument. Capitalized terms used herein and not otherwise defined shall
have the meanings given to them in the Note. In the event of any conflict
between the terms and provisions of this Modification and the terms and
provisions of the Note, the terms and provisions of this Modification
shall control.
IN WITNESS WHEREOF, the undersigned have caused this Modification to be executed
as of the day and year first above written.
Homes By Xxxxxx, LLC
a Florida limited liability company
By: /s/ Xxxxx X. Xxxxxxxxx
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Print: Xxxxx X. Xxxxxxxxx
Its: Manager Member
NATIONAL CITY BANK, A NATIONAL BANKING
ASSOCIATION
By: /s/ Xxxx Xxxx
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Print: Xxxx Xxxx
Its: Vice President
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