Exhibit 10.9
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PREPARED BY/RECORD AND RETURN TO: Conrad J. Boyle, Esquire, Mombach, Boyle &
Hardin, P.A., 500 East Broward Boulevard, Suite 1950, Fort Lauderdale, Florida
33394.
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THIS INSTRUMENT MODIFIES THAT CERTAIN MORTGAGE DEED AND SECURITY
AGREEMENT EXECUTED BY MORTGAGOR IN FAVOR OF MORTGAGEE DATED DECEMBER
20, 2004, RECORDED ON DECEMBER 27, 2004, IN OFFICIAL RECORDS BOOK
38764, PAGE 1973 OF THE PUBLIC RECORDS OF BROWARD COUNTY, FLORIDA, AND
REFLECTS A FUTURE ADVANCE IN THE AMOUNT OF TWO HUNDRED AND FIFTY
THOUSAND DOLLARS ($250,000.00), SUCH THAT DOCUMENTARY STAMP TAX IN THE
AMOUNT OF EIGHT HUNDRED AND SEVENTY-FIVE DOLLARS ($875.00) AND
INTANGIBLE TAX IN THE AMOUNT OF FIVE HUNDRED DOLLARS ($500.00) IS BEING
PAID ON SAID INDEBTEDNESS WITH THE RECORDATION OF THIS INSTRUMENT IN
BROWARD COUNTY, FLORIDA.
RECEIPT FOR FUTURE ADVANCE AND
MORTGAGE MODIFICATION AGREEMENT
THIS RECEIPT FOR FUTURE ADVANCE AND MORTGAGE MODIFICATION AGREEMENT
("Agreement") is made and entered into as of the _____ day of October, 2005, by
and between AGU ENTERTAINMENT CORP., a Delaware corporation, whose address is
3200 West Oakland Park Blvd, Lauderdale Lakes, Florida 33311 (hereinafter
referred to as "Mortgagor") and CHARLEY ZECHES, in her capacity as Trustee of
LAKES HOLDING TRUST U/A dated July 27, 2001, whose address is 521 East Las Olas
Boulevard, Florida 33301, its successors and assigns (hereinafter referred to as
"Mortgagee").
W I T N E S S E T H:
WHEREAS, Mortgagee made and effectuated that certain loan to Mortgagor,
as evidenced by the execution and delivery by Mortgagor in favor of Mortgagee of
that certain Promissory Note in the principal amount of $7,000,000.00 (the "7MM
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Note"). The 7MM Note is secured by that certain Mortgage Deed and Security
Agreement executed by Mortgagor in favor of Mortgagee dated December 20, 2004
and recorded in Official Records Book 38764, Page 1973 of the Public Records of
Broward County, Florida (the "Original Mortgage"). The 7MM Note is further
secured by the following documents:
A. That certain Assignment of Rents, Leases and Deposits executed by
Mortgagor in favor of Mortgagee dated December 20, 2004 and recorded in Official
Records Book 38765, Page 5 of the Public Records of Broward County, Florida (the
"Assignment").
B. That certain Subordination Agreement dated December 20, 2004 by and
between Mortgagor, Mortgagee and Mitchell Entertainment Company, a Delaware
limited liability Company ("Mitchell") (the "Original Subordination Agreement")
C. That certain UCC-1 Financing Statement recorded on December 27,
2004, in Official Records Book 38765, Pages 18-24 of the Public Records of
Broward County, Florida and that certain UCC-1 filed with the Delaware
Department of State on January 27, 2005, under File No. 5032949 1 (collectively,
the Financing Statements").
The 7MM Note, the Original Mortgage, the Assignment, the Original Subordination
Agreement and the Financing Statements, together with any related documentation
executed in connection with the loan evidenced by the 7MM Note are hereinafter
collectively referred to as the "Original Loan Documents", which Original Loan
Documents currently encumber certain real property owned by Mortgagor located in
Broward County, Florida, as more particularly described on Exhibit "A" annexed
hereto and made a part hereof (the "Property" or the "Mortgaged Property"); and
WHEREAS, Mortgagor has applied to Lender to provide for a future
advance under the Original Mortgage in the amount of $250,000.00 (the "Future
Advance"); and
WHEREAS, Lender is agreeable to allowing Mortgagor to obtain the Future
Advance, as evidenced by the 250M Note (as defined herein), in accordance with
the terms and provisions set forth herein; and
WHEREAS, Mortgagee and Mortgagor have agreed to enter into this Receipt
for Future Advance and Mortgage Modification Agreement provided the Original
Loan Documents remain in a first priority security position and further provided
the 7MM Note and the Original Mortgage are modified in accordance with the terms
and provisions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
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1. Preamble. The above and foregoing preamble is acknowledged by the
parties to be true and correct and is incorporated herein by reference.
2. Future Advance. It is acknowledged that simultaneously herewith,
Mortgagor has borrowed the additional sum of $250,000.00 from Mortgagee, under
and pursuant to the terms of that certain Promissory Note in the principal
amount of $250,000.00, dated of even date herewith and executed by Mortgagor in
favor of Mortgagee (the "250M Note"). The 250M Note is made pursuant to the
terms and provisions of the Original Mortgage, as modified herein, and the
additional sum evidenced thereby shall be and is fully secured by the Original
Mortgage and the Original Loan Documents, as modified herein, all of which shall
provide Mortgagee with a first priority lien and security interest in the
Mortgaged Property, except as set forth in that certain Subordination Agreement
dated as of even date herewith by and among Mortgagor, Mortgagee, Mitchell
Entertainment Company, a Delaware corporation ("Mitchell") and Tarragon South
Development Corp., a Nevada corporation ("Tarragon") (the "Subordination
Agreement").
3. Continuation of Prior Debt. This Agreement does not constitute the
extinguishment of the debt evidenced by the 7MM Note or secured by the Original
Mortgage nor does it in any way affect or impair the lien or enforceability of
the Original Mortgage, as modified herein, or any other of the Original Loan
Documents, as amended herein (or in other documentation executed
contemporaneously herewith), which lien is a valid and existing (i) first lien
on the Mortgaged Property and shall secure the entire principal balance of, and
all payments due and owing under the 7MM Note and (ii) third lien on the
Mortgaged Property and shall secure the entire principal balance of, and all
payments due and owing under the 250M Note.
4. Reaffirmation of the Original Loan Documents. Mortgagor does hereby
agree that all, each and every of the terms, covenants and conditions set forth
in the Original Loan Documents which are not inconsistent herewith are hereby
expressly confirmed, ratified and declared to be in full force and effect and to
the extent applicable are hereby restated as if made as of the date hereof.
Mortgagor does hereby unconditionally reaffirm all of its obligations
under the 7MM Note and the other Original Loan Documents such that all
affirmative covenants set forth therein are hereby restated as if made as of the
date hereof, and, reaffirms that such documentation is in full force and effect,
as modified herein.
Mortgagor acknowledges and confirms that any and all obligations of
Mortgagee under the Original Loan Documents, to date, have been fully met and
that there have been no defaults or actions which lead or may lead to any
default or any event of default by Mortgagee under any of the Original Loan
Documents with the exception of the "Stated Facts" as defined in the
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Subordination Agreement. Mortgagor further warrants and represents that there
are no defenses, setoffs, claims or counterclaims which could be asserted
against Mortgagee, or, the obligation of Mortgagor to pay to Mortgagee the
payments due and owing under the 7MM Note and/or the Original Loan Documents
when and as the same become due and payable. Mortgagor does hereby waive any and
all claims that Mortgagor may have against Mortgagee, through the date of the
execution of this Agreement.
5. Release or Satisfaction of the Mortgage. Mortgagor acknowledges and
agrees that Mortgagee shall have no obligation to release or satisfy the
Original Mortgage, as modified herein, until the indebtedness evidenced by the
7MM Note and the 250M Note and all sums due and payable under the Original Loan
Documents have been paid in full to Mortgagee.
6. Representations and Warranties. Mortgagor hereby represents and
warrants to Mortgagee as follows:
A. The execution of this Agreement has been duly authorized.
B. Mortgagor is duly organized, validly existing and in good standing
under the laws of the state of Delaware and has (i) all necessary
licenses, authorizations, registrations and approvals and (ii) full
power and legal authority to own its properties, carry on its
businesses in the State of Florida and engage in the transactions
contemplated by the Original Mortgage, as modified herein and the
Original Loan Documents.
C. With the exception of the Stated Facts, there are no suits, actions
or proceedings pending (nor, to the knowledge of Mortgagor are there
any actions, suits or proceedings threatened) against Mortgagor or any
of its properties in any court or before any arbitrator of any kind at
law or before or by any governmental or non-governmental body which
would materially adversely affect the Mortgaged Property or the
financial condition of Mortgagor.
D. All financial documentation heretofore delivered to Mortgagee is
true, accurate and complete in all material respects, as of the
effective date thereof.
E. No bankruptcy or insolvency proceedings are pending or contemplated
by or against Mortgagor, and there have been no charges, pledges or
hypothecations respecting Mortgagor or of any interest in Mortgagor
which could adversely affect any of the transactions contemplated under
this Agreement.
F. All information, reports, financial documentation, papers and data
given to Mortgagee with respect to Mortgagor, or the Mortgaged Property
are accurate in all material respects insofar as completeness may be
necessary in order to give Mortgagee a true and accurate knowledge of
the subject matter.
G. There are no mechanics or other statutory liens (with the exception
of 2005 real estate taxes which are not yet due and owing) against the
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Mortgaged Property and there are no unpaid bills or claims outstanding
for labor or materials incident to the construction, repair,
renovating, excavating or improving of the Mortgaged Property, except
normal ongoing trade payables relating to the current construction and
trade payables relating to maintenance of the Mortgaged Property, none
of which are more than thirty (30) days past due.
7. Expenses of Transaction. Mortgagor shall promptly pay all fees,
costs, expenses and disbursements of Mortgagee and Mortgagee's counsel in
connection with the preparation, execution, delivery and performance of this
Agreement and in connection with all negotiations relating to the Mortgaged
Property and this Agreement, including, without limitation, documentary stamps
and intangible tax (recurring and non-recurring) on the 250M Note. Mortgagor
shall and hereby does indemnify and hold Mortgagee harmless against liability
for the payment of all state documentary stamp taxes or other taxes, including
interest and penalties, if any, which may be determined to be payable with
respect to the execution and delivery of this Agreement and the 250M Note.
Mortgagor acknowledges that it has participated with Mortgagee in establishing
the structure of this transaction and it has independently determined the amount
of documentary stamp and other taxes due in connection herewith. Mortgagor has
not relied upon any representation of Mortgagee or its counsel in calculating
the amount of such taxes, and Mortgagor shall be liable for all state
documentary stamp tax and other taxes (including interest and penalties) which
may be due in connection with the transactions contemplated in this Agreement
with regard to the execution and delivery of the 7MM Note and 250M Note and any
renewal, modification or extension thereof, and, Mortgagor also authorizes
Mortgagee to pay any of such taxes. The provisions of this section shall survive
the repayment of the Indebtedness, the satisfaction of the Original Mortgage, as
modified herein, and the termination of the Original Loan Documents.
8. Lien Priority. Mortgagor hereby represents and warrants unto
Mortgagee that the Mortgage constitutes a valid and existing first lien upon the
Mortgaged Property.
9. Captions. The captions of this Agreement are for convenience and
reference only and in no way define, describe, extend or limit the scope of
intent of this Agreement or the intent of any provision hereof.
10. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefits of the heirs, executors, administrators, successors, and
permitted assigns of the respective parties hereto.
11. Modification. This Agreement may be modified only by written
modification hereto.
12. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto, as to the subject matter hereof and shall be
interpreted in accordance with the laws of the State of Florida.
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13. WAIVER AND RELEASE. AS A MATERIAL INDUCEMENT FOR MORTGAGEE TO
EXECUTE THIS AGREEMENT, AND TO MAKE THE FUTURE ADVANCE, MORTGAGOR DOES HEREBY
RELEASE, WAIVE, DISCHARGE, COVENANT NOT TO SUE, ACQUIT, SATISFY AND FOREVER
DISCHARGE MORTGAGEE, ITS OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS AND
ITS OR THEIR AFFILIATES AND ASSIGNS FROM ANY AND ALL LIABILITY, CLAIMS, OFFSETS,
COUNTERCLAIMS, DEFENSES, ACTIONS, CAUSES OF ACTION, SUITS, CONTROVERSIES,
AGREEMENTS, PROMISES AND DEMANDS WHATSOEVER IN LAW OR IN EQUITY WHICH THE
MORTGAGOR EVER HAD, NOW HAS, OR WHICH ANY SUCCESSOR OR ASSIGN OF MORTGAGOR
HEREAFTER CAN, SHALL OR MAY HAVE AGAINST MORTGAGEE, ITS OFFICERS, DIRECTORS,
EMPLOYEES, ATTORNEYS AND AGENTS, AND ITS OR THEIR AFFILIATES AND ASSIGNS WITH
REGARD TO THE ORIGINAL MORTGAGE AND THE INDEBTEDNESS SECURED THEREBY, FOR, UPON
OR BY REASON OF ANY MATTER, CAUSE OR THING WHATSOEVER, AS TO CLAIMS EXISTING AS
OF THIS DATE, INCLUDING, WITHOUT LIMITATION, THE INDEBTEDNESS OF THE 7MM NOTE
AND THE ORIGINAL LOAN DOCUMENTS. MORTGAGOR FURTHER EXPRESSLY AGREES AND
ACKNOWLEDGES THAT THE FOREGOING RELEASE AND WAIVER IS INTENDED TO BE AS BROAD
AND INCLUSIVE AS PERMITTED BY THE LAWS OF THE STATE OF FLORIDA. IN ADDITION TO,
AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND IN CONSIDERATION OF
MORTGAGEE'S AGREEMENT TO MAKE THE FUTURE ADVANCE AND TO EXECUTE THIS AGREEMENT,
MORTGAGOR COVENANTS WITH AND WARRANTS UNTO MORTGAGEE, ITS OFFICERS, DIRECTORS,
EMPLOYEES, ATTORNEYS, AGENTS AND ITS OR THEIR AFFILIATES AND ASSIGNS THAT
THROUGH THE DATE OF THE EXECUTION OF THIS AGREEMENT, THERE EXIST NO CLAIMS,
COUNTERCLAIMS, DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OF OFFSETS AGAINST
MORTGAGEE OR THE OBLIGATION OF MORTGAGOR TO PAY THE INDEBTEDNESS DUE UNDER THE
7MM NOTE, THE 250M NOTE OR UNDER THE ORIGINAL LOAN DOCUMENTS TO MORTGAGEE WHEN
AND AS THE SAME BECOMES DUE AND PAYABLE AND MORTGAGOR HEREBY EXPRESSLY WAIVES
AND RELEASES ANY AND ALL CLAIMS, COUNTERCLAIMS, DEFENSES, OBJECTIONS, OFFSETS OR
CLAIMS OF OFFSETS AGAINST MORTGAGEE ARISING AT ANY TIME THROUGH THE DATE HEREOF
WITH REGARD TO SUCH INDEBTEDNESS OR ANY PART THEREOF.
WAIVER OF JURY TRIAL. MORTGAGOR AND MORTGAGEE HEREBY MUTUALLY KNOWINGLY,
WILLINGLY AND VOLUNTARILY WAIVE THEIR RIGHT TO TRIAL BY JURY AND NO PARTY NOR
ANY ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL REPRESENTATIVE OF THE PARTIES (ALL OF
WHOM ARE HEREINAFTER COLLECTIVELY REFERRED TO AS THE "PARTIES") SHALL SEEK A
JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION
PROCEEDING BASED UPON OR ARISING OUT OF THIS MORTGAGE OR THE LOAN DOCUMENTS OR
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ANY INSTRUMENT EVIDENCING, SECURING OR RELATING TO THE INDEBTEDNESS OR OTHER
OBLIGATIONS SECURED HEREBY OR ANY RELATED AGREEMENT OR INSTRUMENT, ANY OTHER
COLLATERAL FOR THE INDEBTEDNESS SECURED HEREBY OR ANY COURSE OF ACTION, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS RELATING TO THE
LOAN EVIDENCED BY THE 7MM NOTE, THE 250M NOTE OR TO THE ORIGINAL MORTGAGE AS
MODIFIED BY THIS AGREEMENT. THE PARTIES ALSO WAIVE ANY RIGHT TO CONSOLIDATE ANY
ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL HAS NOT BEEN WAIVED, EXCEPT FOR MANDATORY JOINDERS. THE PROVISIONS OF
THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES. THE WAIVER CONTAINED
HEREIN IS IRREVOCABLE, CONSTITUTES A KNOWING AND VOLUNTARY WAIVER, AND SHALL BE
SUBJECT TO NO EXCEPTIONS. MORTGAGEE HAS IN NO WAY AGREED WITH OR REPRESENTED TO
MORTGAGOR OR ANY OTHER PARTY THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE
FULLY ENFORCED IN ALL INSTANCES.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
the day and year first above written.
________________________________ AGU ENTERTAINMENT CORP., a
Print Name: ____________________ Delaware corporation
By: ________________________
________________________________ David Levy, President
Print Name:_____________________
STATE OF FLORIDA
COUNTY OF _________________
The foregoing instrument was acknowledged before me this _______ day of
October, 2005, David Levy, as President of and on behalf of AGU ENTERTAINMENT
CORP., a Delaware corporation, who ____ is personally known to me or ____
produced his driver's license as identification.
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NOTARY PUBLIC-State of Florida
Print/Type/Stamp Name:
Commission Expiration Date:
Notary Seal:
(Signing as a notary public
and not as a maker or
endorser of this Agreement)
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