Exhibit 10.2
This instrument prepared by:
Mark A. Jacobs, Esq
Bergman and Jacobs, P.A.
2001 Hollywood Boulevard, Suite 200
Hollywood, Fl. 33020
DOCUMENTARY STAMPS ON THE NOTE AND INTANGIBLE TAX ON THE MORTGAGE IN THE AMOUNTS REQUIRED BY LAW HAVE BEEN PAID IN FULL UPON THE OCCASION OF THE MAKING OF THE ORIGINAL NOTE AND IN CONNECTION WITH THE RECORDATION OF THAT CERTAIN MORTGAGE RECORDED IN O.R. BOOK 6218 AT PAGE 4333 OF THE PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA. DOCUMENTARY STAMPS ON THE FUTURE ADVANCE IN THE PRINCIPAL AMOUNT OF $7,246,111.89 ARE ATTACHED HERETO.
FUTURE ADVANCE, NOTE AND MORTGAGE MODIFICATION AGREEMENT
THIS FUTURE ADVANCE, NOTE AND MORTGAGE MODIFICATION AGREEMENT (“AGREEMENT”), is made and entered into this day of October, 2008, by and between:POST, BUCKLEY, SCHUH & JERNIGAN, INC., a Florida corporation, whose address is: 5300 West Cypress Street, Suite 200, Tampa, Fl. 33607 (the“MORTGAGOR” or “BORROWER”) asMORTGAGOR and BORROWER; andSUNTRUST BANK, a State Bank organized under the laws of Georgia, (the “MORTGAGEE” or “LENDER”), asMORTGAGEEand SECURED PARTY, whose address is 777 Brickell Avenue, Miami, Florida 33131.
RECITALS:
A.BORROWER executed the following promissory notes:
i) that certain Promissory Note dated March 19, 2001 in the original principal amount of $9,000,000.00 (“Note”).
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(All promissory notes as referenced herein and all other notes executed in accordance with this Agreement are collectively hereinafter referred to as the “NOTES” except as otherwise referenced)
B. As security for theNote,theBORROWER executed and delivered toLENDERthe following documents:
1) that certainMORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES, RENTS AND PROFITS (“MORTGAGE”) dated March 19, 2001, recorded March 21, 2001, in Official Records Book 6218 at Page 4333 of the Public Records of Orange County, Florida.
2) The saidNote is further secured by or subject to the terms and conditions set forth in an Assignment of Leases, Rents, and Profits dated March 19, 2001, recorded March 21, 2001, in Official Records Book 6218 at Page 4368 of the Public Records of Orange County, Florida and certain UCC-1 Financing Statements filed with the Clerk of the Circuit Court recorded March 21, 2001 in Official Records Book 6218 at Page 4376 of the Public Records of Orange County, Florida, as renewed on November 2, 2005 recorded in Official Records Book 8282 at Page 4584 of the Public Records of Orange County, Florida and other related loan documents.
3) TheMORTGAGE and theRelated Security Documents secure payment of theNote and all Modifications and extensions thereto and encumber the property (the “PROPERTY”) as described in theMORTGAGE.
(All of the loan documents as set forth in this Section B are collectively referred to as the “Related Security Documents”)
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C.BORROWERis the owner of thePROPERTY as described on Exhibit “A” attached hereto encumbered by theMORTGAGE andLENDER is the owner and holder of theNoteandMORTGAGE and is theSECURED PARTY under said documents and theRelated Security Documents.
D. The total principal amount evidenced by theNote, as of the date hereof, is: $6,353,888.11.
E. TheBORROWERhas requested from theLENDER a Future Advance Loan (“FUTURE ADVANCE”) under the terms of theMORTGAGE in the amount of SEVEN MILLION TWO HUNDRED FORTY SIX THOUSAND ONE HUNDRED ELEVEN DOLLARS AND EIGHTY NINE CENTS ($7,246,111.89) which will be evidenced by a Future Advance Promissory Note (“Future Advance Promissory Note”). The Future Advance Promissory Notewill be secured by theMORTGAGE andRelated Security Documents. The Future Advance Promissory Note and theNote will be consolidated and renewed and evidenced by a Consolidated Renewal Promissory Note (“Consolidated Renewal Promissory Note”) in the principal amount of THIRTEEN MILLION SIX HUNDRED THOUSAND DOLLARS ($13,600,000.00), which shall be the operative promissory note.
F.BORROWERhas requested thatLENDER:
a) provide a FUTURE ADVANCE in the amount of $7,246,111.89;
b) modify certain terms and conditions of theMORTGAGEandRelated Security Documents;
c) modify, renew and consolidate theNote with the Future Advance PromissoryNote;
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d) have all parties confirm and reaffirm the lien and validity of theMORTGAGE and theRelated Security Documents.
AGREEMENT:
NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth and for Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which each party acknowledges, the parties hereto do hereby agree as follows:
1. The recitals hereinabove contained are true and correct, affirmed and are made a part hereof and incorporated herein by reference.
2. This Agreement evidences a future advance (“FUTURE ADVANCE”) made by theLENDER pursuant to the future advance provision of theMORTGAGE referred to hereinabove. It is agreed that this future advance is evidenced by the Future Advance Promissory Note in the principal amount of $7,246,111.89. The Future Advance Promissory Note shall be secured by the above describedMORTGAGEandRelated Security Documents. TheBORROWER agrees to pay the indebtedness in accordance with the terms of the Future Advance Promissory Note and any renewals, modifications, extensions or consolidations thereof.
3. The Future Advance Promissory Note and theNote will be consolidated and renewed and will be evidenced by theConsolidated Renewal Promissory Notein the principal amount of $13,600,000.00. TheBORROWERagrees to pay the indebtedness in accordance with the terms of theConsolidated Renewal Promissory Noteand any renewals, modifications, extensions or consolidations thereto.
4. TheBORROWERdoes hereby grant, bargain, sell alien, remise, release, convey and confirm unto theLENDER as security
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for theConsolidated Renewal Promissory Noteand all other notes referenced herein, thePROPERTY described in Exhibit “A” attached hereto encumbered by theMORTGAGE.
5.BORROWER does hereby fully warrant the title to thePROPERTY and to each part thereof and will defend the same against the claims of all persons whomsoever.BORROWER hereby covenants that said LENDER has a valid first lien on thePROPERTY described in Exhibit “A” and that theBORROWERis indefeasibly seized of the fee simple title thereto.
6. TheBORROWERandLENDERfurther agree that theMORTGAGE shall secure in addition to theNOTES and other matters as set forth in theMORTGAGE,all “Financial Contract Obligations”, as hereinafter defined.
“Financial Contract Obligations” shall means any indebtedness, liabilities, or obligations now existing or hereafter arising, due or to become due, absolute or contingent, of theBorrower to theLender or any subsidiary or related entity of theLender arising out of or in connection with (i) the Commitment Letter, theNote or any of the Loan Documents, and (ii) any other agreements, documents (or oral agreement or by operation of law and whether or not evidenced by promissory notes or by other evidences ofIndebtedness orLoan) or instruments heretofore, now or hereafter executed and delivered to theLender, including , without limitation, obligations under a Financial Contract permitted hereunder. “Financial Contract” shall mean (1) an agreement (including terms and conditions incorporated by reference therein) which is a rate swap agreement, basis swap, forward rate agreement, commodity swap, commodity option, equity or equity index swap, bond option, interest rate option, foreign exchange agreement, rate cap agreement, rate floor agreement, rate collar agreement, currency swap agreement, cross-currency rate swap agreement, currency option, any other similar agreement (including any option to enter into any of the foregoing); (2) any combination of the foregoing; or (3) a master agreement for any of the foregoing together with all supplements.
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7. TheBORROWERacknowledges the terms of the Financial Covenants as set forth in Section 24 of theMORTGAGE and agrees to fully comply with said Financial Covenants.
8. TheMORTGAGE is hereby modified so that the terms and conditions as set forth herein are incorporated therein as if the terms and conditions herein were originally attached to and made a part of the originalMORTGAGEandRelated Security Documents.
9.BORROWER further confirms that theMORTGAGEandRelated Security Documents secure the payment of theNOTES,including but not limited to theConsolidated Renewal Promissory Note having a present outstanding principal indebtedness ofBORROWER in favor ofLENDER in the amounts as previously set forth herein and which will be paid in accordance with the terms of the saidConsolidated Renewal Promissory Note and all extensions, modifications and renewals thereof.
10. Hereinafter all references in theMORTGAGE to the terms “Promissory Note, Note, or Mortgage Note” shall be deemed to refer to and include the terms as set forth in this Agreement and all promissory notes as referenced in this Agreement.
11. Hereinafter in this Agreement, in theMORTGAGEand in theNOTESthe term “loan documents” shall collectively refer to the all of the promissory notes as referenced herein, theMORTGAGE, and all modifications thereto as referenced in this Agreement and any and all other documents or instruments executed byBORROWER in connection with this Agreement including theRelated Security Documents.
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12.BORROWERhereby reaffirms, ratifies and confirms and further states that theMORTGAGE is valid and enforceable and will remain as such during the term evidenced by theConsolidated Renewal Promissory Note and all subsequent modification, extensions and renewals thereto.
13.BORROWER acknowledges, agrees, represents and confirms toLENDERthat:
a) the loan documents are valid and binding uponBORROWERand enforceable in accordance with the respective terms thereof.
b) theMORTGAGE constitutes a valid and existing First Mortgage lien upon the property located in Orange County, Florida as described inExhibit “A”.
c) there are no defenses, set offs, counterclaims, cross actions or equities in favor ofBORROWERto or against the enforcement of the loan documents.
d) no payments of interest or any other charges have been made toLENDER or to any prior owner or holder of the loan documents, or paid byBORROWER in connection with the loan evidenced by the loan documents which would result in the computation or earning of interest in excess of the maximum legal rate of interest which is legally permitted under the laws of the State of Florida, or Federal law, in effect from time to time whichever is the highest.
e)LENDER is under no obligation to grant or to make any further or additional loans toBORROWER or to further amend or modify any of the loan documents.
f) all of the loan documents are hereby ratified, confirmed and approved in all respects.
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g) ThePROPERTY is commercial property.
14.BORROWERwarrants and represents unto theLENDERthat all real estate taxes on thePROPERTYhave been paid through and including the year 2007.
15. The parties hereto agree that, except as herein otherwise modified, all of the terms, covenants and conditions of theNOTES, Future Advance Promissory Note,Consolidated Renewal Promissory Note, theMORTGAGE, the Loan Documents andRelated Security Documents shall remain in full force and effect.
16. If default occurs under this Agreement, theMORTGAGE, Consolidated Renewal Promissory Note or under any other document executed in connection with any of the foregoing instruments or ifBORROWERshall be in default under that certain loan from Bank of America which is not cured within the applicable cure period, then, in that event, the indebtedness evidenced by the saidNOTES and secured as aforesaid, together with any and all accrued and unpaid interest and all other sums due thereunder, shall, at the option ofLENDER become due and payable without notice toBORROWER, after applicable grace periods as set forth in theMORTGAGE andRelated Security Documents.Failure to exercise this option shall not constitute a waiver of theLENDER’Sright to exercise this option in the event of a subsequent default. A default under this Agreement shall have occurred when a default exists under any of the aforesaid documents or under any other document executed in connection with this Agreement, which remains uncured after any applicable cure period.
17. 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 priority created by theMORTGAGE. In the event that this instrument or any part hereof shall be construed by a court of
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competent jurisdiction as operating to effect the lien priority of theMORTGAGE over claims which would otherwise be subordinate thereto, then to the extent that the modifications are so construed to create an additional charge or burden upon the real property encumbered by theMORTGAGE and to the extent that third persons acquiring an interest in suchPROPERTYbetween the time of recording of theMORTGAGE and the recording hereof are prejudiced thereby, this instrument or such portion hereof as shall be construed, shall be void and of no force or effect and this instrument shall constitute, as to the advance, a third lien on thePROPERTY, incorporating by reference the terms of theMORTGAGE, in which event theMORTGAGE shall be enforced pursuant to the terms therein contained, independent of this instrument; provided, however, that notwithstanding the foregoing, the parties hereto, as between themselves, shall be bound by all the terms and conditions hereof until all indebtedness owing from theMORTGAGOR to theLENDER shall have been paid in full.
18.USA PATRIOT ACT.BORROWER warrants and represents toLENDER that neither theBORROWER nor any affiliate thereof, is identified in any list of known or suspected terrorists published by any United States government agency, (individually, as each such list may be amended or supplemented from time to time, referred to as a “Blocked Persons Lists”) including, without limitation, (i) the annex to Executive Order 13224 issued on September 23, 2001 by the President of the United States, and (ii) the Specially Designated Nationals List published by the United States Office of Foreign Assets Control.
19.TRANSFER OF LOAN: TheLENDER may at any time, sell, transfer or assign the Note, the Security Instrument and the
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other Loan Documents, and any and all servicing rights with respect thereto, or grant participations therein or issue mortgage pass through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement (the “Securities”).LENDER may forward to each purchaser, transferee, assignee, participant, investor in such Securities or any Rating Agency (as hereinafter defined) rating such securities (collectively the “Investor”) and each prospective Investor, all documents and information whichLENDER now has or may hereafter acquire relating to the Debt and to Borrower, any Guarantor and the Property, whether furnished by Borrower, any Guarantor or otherwise, asLENDER determines necessary or desirable. The term “Rating Agency” shall mean each statistical rating agency that has assigned a rating to the Securities.
20. BORROWER AND LENDER 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 OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH OR ANY COURSE OR CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER EXTENDING CREDIT TO THE BORROWER.
21. This Agreement shall be binding upon and shall inure to the benefit of, the respective heirs, successors and assigns of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
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| | | | | | BORROWER: |
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| | | | | | POST, BUCKLEY, SCHUH & JERNIGAN, INC. |
| | | | | | a Florida corporation |
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/s/ Candace M. Cochrane | | | | By: | | /s/ Donald J. Vrana |
| Witness Signature | | | | | | DONALD J. VRANA |
| Print: Candace M. Cochrane | | | | As its: | | Senior Vice President and |
| | | | | | | | Chief Financial Officer |
/s/ Heathes Madonna | | | | | | |
| Witness Signature | | | | | | |
| Print: Heathes Madonna | | | | | | |
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| STATE OF FLORIDA | | ) |
| COUNTY OF HILLSBOROUGH | | ) |
The foregoing instrument was acknowledged before me this 28th day of October, 2008, by DONALD J. VRANA, as Senior Vice President and Chief Financial Officer of POST, BUCKLEY, SCHUH & JERNIGAN, INC., a Florida Corporation, on behalf of the corporation. He/she ( ) is personally known to me or ( ) has produced as identification a .
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| | | | | | /s/ Monica M. Vazquez |
| | | | | | NOTARY PUBLIC, STATE OF FLORIDA |
| | | | | | Print Name: |
| | | | | | Commission Number: DD735464 |
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| | | | | | LENDER: |
| | | |
| | | | | | SUNTRUST BANK |
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| | | | By: | | |
| Witness Signature | | | | | | CRISTINA R. di MAURO |
| Print | | | | | | As its: | | Vice President |
| | | |
| | | | | | |
| Witness Signature | | | | | | |
| Print | | | | | | | | |
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| | |
| STATE OF FLORIDA | | ) |
| COUNTY OF MIAMI-DADE | | ) |
The foregoing instrument was acknowledged before me this day of October, 2008, by CRISTINA R. di MAURO, as Vice President of SUNTRUST BANK, on behalf of the bank. He ( ) is personally known to me or ( ) has produced as identification.
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| NOTARY PUBLIC, STATE OF FLORIDA |
| Print Name: | | |
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