EXHIBIT 10.6
MORTGAGE MODIFICATION AGREEMENT
THIS MORTGAGE MODIFICATION AGREEMENT is made and entered
into as of the 1st day of December, 1993, by and between PELICAN
SOUND APARTMENTS, INC., a Florida corporation ("Mortgagor"),
joined by FENGAR INVESTMENTS CORPORATION, a Canadian corporation
("Guarantor"), and RIVER BANK AMERICA, a New York banking
corporation formerly known as East River Savings Bank
("Mortgagee").
W I T N E S S E T H:
WHEREAS, Mortgagee is the owner and holder of (i) that
certain Building Loan Mortgage executed by Pelican Sound Limited
Partnership, a Florida limited partnership ("Original Borrower")
in favor of Mortgagee (under its former name of "East River
Savings Bank") dated as of the 30th day of September, 1987,
recorded October 2, 1987, in Official Records Book 6593, Page
1965 of the Public Records of Pinellas County, Florida ("Mortgage
1"), encumbering the real property and improvements more
particularly described in Mortgage 1 (the "Mortgage Property"),
(ii) that certain Mortgage by Original Borrower in favor of
Mortgagee, dated December 27, 1989 recorded January 3, 1990 in
Official Records Book 7167, Page 1916 of the Public Records of
Pinellas County, Florida ("Mortgage 2"), encumbering the Mortgage
Property, and (iii) that certain Mortgage Consolidation and
Modification Agreement by and between Original Borrower and
Mortgagee, dated as of December 27, 1989, recorded January 3,
1990 in Official Records Book 7167, Page 1961, in the Public
Records of Pinellas County, Florida, pursuant to which Mortgage 1
and Mortgage 2 were amended and restated in their entirety and
consolidated as a single mortgage lien securing a consolidated
indebtedness as of the date thereof in the principal amount of
$15,750,000.00 (all such instruments, as consolidated, modified
and restated being hereinafter referred to as the "Consolidated
Mortgage"); and
This instrument prepared by
and should be returned to:
Richard H. Sollner, Esq.
Trenam, Simmons, Kemker,
Scharf, Barkin, Frye &
O'Neill, P.A.
2700 Barnett Plaza
Post Office Box 1102
Tampa, Florida 33601
WHEREAS, the Consolidated Mortgage secures (i) that certain
Building Loan Mortgage Note dated September 30, 1987, by Original
Borrower to the order of Mortgagee evidencing a loan in the
original principal amount of $15,150,000.00 ("Note 1"), (ii) that
certain Mortgage Note dated December 27, 1989, executed by
Original Borrower to the order of the Lender, evidencing further
indebtedness of Original Borrower to Mortgagee in the original
principal amount of $600,000.00 ("Note 2"), and (iii) that
certain Note Consolidation and Modification Agreement by and
between Original Borrower and Mortgagee, dated as of December 27,
1989 (the "Note Modification Agreement"), consolidating Note 1
and Note 2 as a single indebtedness in the principal amount as of
such date of $15,750,000.00, and amending and restating such
consolidated indebtedness theretofore evidenced by Note 1 and
Note 2 in its entirety (all such instruments, as consolidated,
modified and restated being hereinafter referred to as the
"Original Note"); and
WHEREAS, Original Note and the Consolidated Mortgage were
assumed by Mortgagor by virtue of that certain Release and
Assumption Agreement dated December 27, 1989, recorded in
Official Records Book 7167, Page 2002, Public Records of Pinellas
County, Florida; and
WHEREAS, the Original Note has been renewed by a certain
Renewal Mortgage Promissory Note in the original principal amount
of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) dated as of
even date herewith executed by Mortgagor in favor of Mortgagee
(the "Renewal Note"); and
WHEREAS, Mortgagor and Mortgagee desire to execute and
record this Agreement in order to evidence and give record notice
that the Renewal Note is secured by the lien of the Consolidated
Mortgage, and Guarantor has executed and delivered this Agreement
to evidence its joinder herein;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. The Renewal Note shall be secured by the lien of the
Consolidated Mortgage, as modified hereby. Whenever the term
"Note" is used in the Consolidated Mortgage, as modified hereby,
it shall be deemed to refer to the Renewal Note.
2. The Consolidated Mortgage shall also secure Mortgagor's
obligations under that certain Term Loan Agreement of even date
herewith executed by, among others, Mortgagor, Guarantor and
Mortgagee (the "Loan Agreement").
3. Unless the Renewal Note matures prior to December 1, 2003
in accordance with the terms of the Renewal Note, the maturity
date of the Consolidated Mortgage, as modified hereby, December
1, 2003.
4. Mortgagor warrants and represents that the lien of the
Consolidated Mortgage is a valid first priority lien on the
Mortgage Property and that the security interests granted by any
document securing the Original Note or the Renewal Note and/or
executed in connection with, or relating to, the indebtedness
evidenced thereby (individually, a "Loan Document," and
collectively, the "Loan Documents") is, to the extent the same
secures the Original Note or the Renewal Note, a valid and
perfected security interest in the collateral described therein
with a priority as stated therein, except as may be expressly
modified hereby.
5. Mortgagor warrants and represents that:
(a) such Loan Documents and other agreements, documents
or instruments, if any, are in full force and effect as of the
date hereof, and are enforceable in accordance with their
respective terms;
(b) Mortgagor has no defense or right of offset with
respect to any indebtedness to Mortgagee;
(c) except for any defaults of which Mortgagee is aware
and has agreed to forbear in enforcing, Mortgagor is not in
default of any of the covenants and conditions of the Loan
Documents, nor aware of any default with respect thereto or of
any event which, with notice and/or passage of time, would become
an event of default under any of the foregoing; and
(d) the organizational documents of Mortgagor which
were provided to Mortgagee in connection with the execution of
the Renewal Note remain true and correct and have not been
modified or amended and Mortgagor remains in good standing and
authorized to transact business in the State of Florida.
6. It is the intent of the parties that this instrument
shall not constitute a novation, and shall in no way adversely
affect the lien or security interest priority of the Loan
Documents.
7. Except as herein provided, the Consolidated Mortgage and
the other Loan Documents shall remain unaffected, unchanged,
unmodified, and unimpaired, and the priority of the lien of the
Consolidated Mortgage on the Mortgage Property shall not be
changed or in any way altered or affected hereby.
8. Guarantor hereby consents to the renewal and
modifications made herein and agrees and acknowledges that the
payment of the indebtedness of Mortgagor to Mortgagee evidenced
by the Renewal Note and the performance by Mortgagor of its
obligations under the Consolidated Mortgage and the Loan
Agreement are guaranteed by Guarantor pursuant to the terms of
that certain Guaranty of Payment dated December 27, 1989 executed
by Guarantor in favor of Mortgagee.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as of the day and year first above written.
Signed, sealed and delivered
in the presence of: PELICAN SOUND APARTMENTS,
INC.,
a Florida corporation
/s/____________________________ By:/s/________________________
Name:_______________________ Name:_________________________
[Please Print or Type] Title:________________________
/s/_________________________
Name:_______________________ (CORPORATE SEAL)
[Please Print or Type]
"MORTGAGOR"
FENGAR INVESTMENTS CORPORATION,
a Florida corporation
/s/_________________________ By:/s/________________________
Name:_______________________ Name:_________________________
[Please Print or Type] Title:________________________
/s/_________________________
Name:_______________________ (CORPORATE SEAL)
[Please Print or Type]
Signed, sealed and delivered RIVER BANK AMERICA, a New
in the presence of: York banking corporation
____________________________ By:/s/________________________
Name:_______________________ Name:_________________________
[Please Print or Type] Title:________________________
/s/_________________________ Address: 145 Huguenot Street
Name:_______________________ New Rochelle, NY 20801
[Please Print or Type]
"MORTGAGEE"
STATE OF ___________________)
COUNTY OF __________________)
THE FOREGOING INSTRUMENT has been acknowledged before me
this _____ day of December, 1993, by /s/_______________________,
as _________________________, of PELICAN SOUND APARTMENTS, INC.,
a Florida corporation, on behalf of the corporation. He/she is
either [please check as applicable] personally known to me or has
produced his/her driver's license as identification.
__________________________________
Name:_____________________________
[Please Print or Type]
NOTARY PUBLIC
(AFFIX NOTARIAL SEAL)
My Commission Expires:
STATE OF ___________________)
COUNTY OF __________________)
THE FOREGOING INSTRUMENT has been acknowledged before me
this _____ day of December, 1993, by __________________________,
as _________________________, of FENGAR INVESTMENTS CORPORATION,
a Canadian corporation, on behalf of the corporation. He/she is
either [please check as applicable] personally known to me or has
produced his/her driver's license as identification.
/s/_______________________________
Name:_____________________________
[Please Print or Type]
NOTARY PUBLIC
(AFFIX NOTARIAL SEAL)
My Commission Expires:
STATE OF NEW YORK __________)
COUNTY OF __________________)
THE FOREGOING INSTRUMENT has been acknowledged before me
this _____ day of December, 1993, by Edward L. Shugrue, III, as
Vice President, of RIVER BANK AMERICA, a New York banking
corporation, on behalf of the corporation. He is personally
known to me.
/s/_______________________________
Name:_____________________________
[Please Print or Type]
NOTARY PUBLIC
(AFFIX NOTARIAL SEAL)
My Commission Expires: