Prepared by and
return to:
Christina M. Johnson-Boyce
Fowler White Boggs P.A.
501 East Kennedy Blvd., Suite 1700
Tampa, Florida 33602
NOTICE OF FUTURE ADVANCE AND
FIFTH AMENDED AND RESTATED
MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
Dated as of March 12, 2009
From
SADDLEBROOK RESORTS, INC., a Florida corporation
5700 Saddlebrook Way
Wesley Chapel, Florida 33543
to
SUNTRUST BANK, A Georgia banking corporation
401 East Jackson Street, Commercial Banking — 10th Floor
Tampa, Florida 33602
This document
amends and restates that certain Mortgage and Security Agreement
dated November 15, 1988, between Borrower, as Mortgagor, and
BarclaysAmerican/Business Credit, Inc., as Mortgagee, recorded on
November 15, 1988, in Official Records Book 1758, at Page 399;
as assigned to NationsBank, N.A. by Assignment of Mortgage recorded
July 19, 1993, in Official Records Book 3174, at Page 1270; as
modified by (i) First Modification recorded July 31,
1989, in Official Records Book 1828, at Page 21, (ii) Second
Modification recorded July 19, 1993, in Official Records Book
3174, at Page 1296; (iii) Notice of Future Advance and Third
Modification Agreement recorded August 19, 1994, in Official
Records Book 3330, at Page 1231; (iv) Notice of Future
Advance, Renewal, Consolidation and Fourth Mortgage Modification
Agreement recorded June 27, 1995, in Official Records Book
3442, at Page 1076; (v) Fifth Mortgage Modification and
Extension Agreement recorded September 14, 1995, in Official
Records book 3473, Page 1421; (vi) Notice of Future Advance,
Consolidation and Sixth Mortgage Modification Agreement recorded
February 23, 1996, in Official Records Book 3536, at Page 713;
and (vii) Seventh Modification recorded December 20,
1996, in Official Records Book 3674, at Page 791; as assigned to
Textron Financial Corporation by Assignment of Note, Mortgage and
Other Loan Documents recorded June 30, 1998, in Official
Records Book 3960, at Page 1422; and as amended and restated by
that certain Amended and Restated Mortgage, Security Agreement, and
Fixture Filing, dated June 29, 1998, executed by Borrower in
favor of Assignor, and recorded June 30, 1998, in Official
Records Book 3960, at Page 1436; and as assigned to Mortgagor by
that certain Assignment of Note, Mortgage and Other Loan Documents
dated November 1, 2004, between Textron Financial Corporation
and Mortgagee, and recorded November 4, 2004, in Official
Records Book 6096, at Page 1904; and as modified by
(viii) Second Amended and Restated Mortgage, Security
Agreement and Fixture Filing, dated November 1, 2004, executed
by Borrower in favor of Mortgagor, and recorded November 4,
2004,
in Official
Records Book 6096, at Page 1913; as modified by (ix) Third
Amended and Restated Mortgage, Security Agreement and Fixture
Filing dated January 31, 2007, and recorded February 8,
2007, in Official Records Book 7381, at Page 65; as modified by
(x) Fourth Amended and Restated Mortgage, Security Agreement
and Fixture Filing dated November 6, 2008, and recorded
November 24, 2008, in Official Records book 7971, at Page
1494, and as further modified by (xi) that certain Partial
Release of Mortgage of even date herewith (all references to the
Public Records of Pasco County, Florida) (collectively, the
“Mortgage” ).
All applicable
documentary stamp taxes and intangible taxes have been paid on the
Mortgage. In addition to the obligations secured under the
Mortgage, this document secures a future advance in the amount of
$2,500,000. Documentary stamp taxes in the amount of $8,750.00 and
non-recurring intangibles taxes in the amount of $5,000.00 are
being paid in connection with such future advance upon the
recordation of this document.
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NOTICE OF FUTURE ADVANCE AND
FIFTH AMENDED AND RESTATED
MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
THIS NOTICE OF
FUTURE ADVANCE AND FIFTH AMENDED AND RESTATED MORTGAGE, SECURITY
AGREEMENT AND FIXTURE FILING is dated as of March 12, 2009
(together with any extensions, renewals, amendments, modifications
or replacements, being referred to herein as the
“Mortgage” ), by and between SADDLEBROOK
RESORTS, INC. , a Florida corporation, whose address is 5700
Saddlebrook Way, Wesley Chapel, Florida 33543, as the Mortgagor
(hereinafter called the “Borrower” ), and
SUNTRUST BANK , a Georgia banking corporation, having an
office at 401 East Jackson Street, Commercial Banking — 10th
Floor, Tampa, Florida 33602, as the Mortgagee (hereinafter called
“Lender” ).
This Mortgage is
made, executed and delivered under the following
circumstances:
A. Borrower
is indebted to Lender in the principal sum of up to Seventeen
Million and No/100ths Dollars (U.S. $17,000,000.00) (the
“Loan” ), together with interest thereon, as
evidenced by: (i) that certain Loan Agreement dated
November 1, 2004, as modified by that certain Addendum to Loan
Agreement dated as of November 1, 2004, as modified by that
certain First Amendment to Loan Agreement dated as of
January 31, 2007, as modified by that certain Second Amendment
to Loan Agreement dated as of November 6, 2008, and as further
modified by that certain Third Amendment to Loan Agreement of even
date herewith (collectively, the “Loan
Agreement” ), (ii) that certain Promissory Note
dated November 1, 2004, from Borrower to Lender in the amount
of Twelve Million and No/100ths Dollars (U.S. $12,000,000.00),
together with that certain Future Advance Promissory Note of even
date herewith, from Borrower to Lender in the amount of Two Million
Five Hundred Thousand and No/100ths Dollars ($2,500,000.00), and
that certain Consolidated, Amended and Restated Promissory Note of
even date herewith from Borrower to Lender in the amount of Ten
Million Six Hundred Thousand and No/100ths Dollars
($10,600,000.00), and (ii) that certain Revolving Line of
Credit Promissory Note dated November 1, 2004, from Borrower
to Lender in the amount of Five Million and No/100ths Dollars
($5,000,000.00), as modified by that certain Amended and Restated
Revolving Line of Credit Promissory Note dated as of
January 31, 2007, from Borrower to Lender in the amount of
Five Million and No/100ths Dollars ($5,000,000.00), as further
modified by those certain letter agreements dated February 20,
2008, February 28, 2008, May 19, 2008, and
August 12, 2008, and as further modified by that certain
Second Amended and Restated Revolving Line of Credit Promissory
Note dated as of November 6, 2008, from Borrower to Lender in
the amount of Five Million and No/100ths Dollars ($5,000,000.00);
and as further modified by that certain Third Amended and Restated
Revolving Line of Credit Promissory Note of even date herewith,
from Borrower to Lender in the amount of Two Million Five Hundred
Thousand and No/100ths Dollars ($2,500,000.00) (collectively, the
“Notes” ).
B. Borrower
is the owner of fee simple title to certain lands located in Pasco
County, Florida, more particularly described in Exhibit
“A” attached hereto and made a part hereof (the
“Land” ), on which Land Borrower plans certain
improvements.
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C. To induce
Lender to make the Loan, and to secure payment of the Notes and
other obligations described below, Borrower has agreed to execute
and deliver this Mortgage.
NOW, THEREFORE, to
secure to Lender (i) the repayment of all sums due under this
Mortgage, the Notes, the Loan Agreement and all other loan
documents, including any Financial Contracts, now or hereafter made
in connection with the Loan, and all extensions, renewals,
replacements and amendments thereof, the term “Financial
Contract” as used herein to 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 (all of the aforementioned documents
in this subsection (i) being, collectively, the “Loan
Documents” ), (ii) the performance of all terms,
conditions and covenants set forth in Loan Documents;
(iii) the repayment of all reimbursement obligations due or
that may become due under or in connection with any present or
future letters of credit issued by Lender for the account of
Borrower; and (iv) all other obligations or indebtedness of
Borrower to Lender of whatever kind or character and whenever
borrowed or incurred, including without limitation, principal,
interest, fees, late charges and expenses, including
attorneys’ fees (subsections (i), (ii), (iii) and
(iv) above collectively constituting the
“Liabilities” hereunder), Borrower has
mortgaged, granted and conveyed, and by these presents does hereby
mortgage, grant and convey, to Lender and its successors and
assigns all of Borrower’s right, title and interest now owned
or hereafter acquired in and to each of the following
(collectively, the “Property” or the
“Mortgaged Property” ):
(A) The
“Real Estate” , which term includes the Land (as
defined above) as well as the Improvements and Appurtenances (as
those terms are defined in this Mortgage, below);
(B) Any and
all buildings and improvements now or hereafter erected on the Real
Estate (the “Improvements” ), which Improvements
shall be deemed included in the term “Real
Estate”;
(C) Any and
all fixtures, machinery, equipment and other articles of real,
personal or mixed property, belonging to Borrower, at any time now
or hereafter installed in, attached to or situated in or upon the
Real Estate, or the buildings and improvements now or hereafter
erected thereon, or used or intended to be used in connection with
the Real Estate, or in the operation of the buildings and
improvements, plant, business or dwelling situate thereon, whether
or not such real, personal or mixed property is or shall be affixed
thereto, and all replacements, substitutions and proceeds of the
foregoing (all of the foregoing herein called the “Service
Equipment” ), including without limitation: (i) all
appliances, furniture and furnishings; all articles of interior
decoration, floor, wall and window coverings; all office,
restaurant, bar, kitchen and laundry fixtures, utensils, appliances
and equipment; all supplies, tools and accessories; all storm and
screen windows, shutters, doors, decorations, awnings, shades,
blinds, signs, trees, shrubbery and other plantings; (ii) all
building service fixtures, machinery and equipment of any kind
whatsoever; all lighting, heating, ventilating, air conditioning,
refrigerating, sprinkling,
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plumbing,
security, irrigating, cleaning, incinerating, waste disposal,
communications, alarm, fire prevention and extinguishing systems,
fixtures, apparatus, machinery and equipment; all elevators,
escalators, lifts, cranes, hoists and platforms; all pipes,
conduits, pumps, boilers, tanks, motors, engines, furnaces and
compressors; all dynamos, transformers and generators;
(iii) all building materials, building machinery and building
equipment delivered on site to the Real Estate during the course
of, or in connection with any construction or repair or renovation
of the buildings and improvements; (iv) all parts, fittings,
accessories, accessions, substitutions and replacements therefor
and thereof; and (v) all files, books, ledgers, reports and
records relating to any of the foregoing;
(D) Any and
all leases (including the Tenant Leases (as defined in the Loan
Agreement)), subleases, tenancies, licenses, occupancy agreements
or agreements to lease all or any portion of the Real Estate,
Improvements, Service Equipment or all or any other portion of the
Property and all extensions, renewals, amendments, modifications
and replacements thereof, and any options, rights of first refusal
or guarantees relating thereto (collectively, the
“Leases” );
(E) all
rents, income, receipts, revenues, security deposits, escrow
accounts, reserves, issues, profits, awards and payments of any
kind payable under the Leases or otherwise arising from the Real
Estate, Improvements, Service Equipment or all or any other portion
of the Property including, without limitation, the Tenant Income
(as defined in the Loan Agreement, and any and all minimum rents,
additional rents, percentage rents, parking, maintenance and
deficiency rents (collectively, the “Rents”
);
(F) all of
the following property (collectively, the
“Contracts” ): all accounts, general intangibles
and contract rights (including any right to payment thereunder,
whether or not earned by performance) of any nature relating to the
Real Estate, Improvements, Service Equipment or all or any other
portion of the Property or the use, occupancy, maintenance,
construction, repair or operation thereof; all management
agreements, franchise agreements, utility agreements and deposits,
building service contracts, maintenance contracts, construction
contracts and architect’s agreements; all maps, plans,
surveys and specifications; all warranties and guaranties; all
permits, licenses and approvals; and all insurance policies, books
of account and other documents, of whatever kind or character,
relating to the use, construction upon, occupancy, leasing, sale or
operation of the Real Estate, Improvements, Service Equipment or
all or any other portion of the Property, including all Property
Contracts (as defined in the Loan Agreement);
(G) Any and
all estates, rights, tenements, hereditaments, privileges,
licenses, easements, reversions, accessions, remainders and
appurtenances of any kind benefiting or appurtenant to the Real
Estate, Improvements or all or any other portion of the Property;
all means of access to and from the Real Estate, Improvements or
all or any other portion of the Property, whether public or
private; all streets, alleys, passages, ways, water courses, water
and mineral rights relating to the Real Estate, Improvements or all
or any other portion of the Property; all rights of Borrower as
declarant or unit owner under any declaration of condominium or
association applicable to the Real Estate, Improvements or all or
any other portion of the Property including, without limitation,
all development rights and special declarant rights; and all other
claims or demands of Borrower, either at law or in equity, in
possession or
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expectancy of,
in, or to the Real Estate, Improvements or all or any other portion
of the Property (collectively, the
“Appurtenances” ); and,
(H) Any and
all proceeds of any of the above-described Real Estate,
Improvements, Service Equipment, Leases, Rents, Contracts and
Appurtenances, which term “proceeds” shall have the
meaning given to it in the Florida Uniform Commercial Code, as
amended, (the “Code” ) and collectively
constitute the “Proceeds” herein, and shall
additionally include whatever sums of money and other things of
value received or receivable by Borrower upon the use, lease, sale,
exchange, transfer, collection or other utilization or any
disposition or conversion of any of the Real Estate, Improvements,
Service Equipment, Leases, Rents, Contracts and Appurtenances,
voluntary or involuntary, whether cash or non-cash, including
proceeds of insurance and condemnation awards, rental or lease
payments, accounts, chattel paper, instruments, documents, contract
rights, general intangibles, equipment and inventory.
TO HAVE AND TO
HOLD the foregoing Property to the proper use and benefit of
Lender and its successors and assigns.
PROVIDED
ALWAYS, that if all the Liabilities are paid in full, and each
and every representation, warranty, agreement and covenant of this
Mortgage and the other Loan Documents are complied with and abided
by, then this Mortgage and the estate hereby created shall cease
and terminate, and be canceled by Lender of record.
In furtherance of
the foregoing, Borrower covenants and agrees with, and represents
to, Lender as follows:
SECTION 1.
FUTURE ADVANCES; PROTECTION OF PROPERTY .
1.1 This Mortgage
shall secure the Liabilities (as defined above), and any and all
present or future advances and readvances on account of the
Liabilities or any of same, all as made by Lender to or for the
benefit of Borrower or the Property within twenty (20) years
from the date hereof (whether such advances are obligatory or are
made at the option of Bank or otherwise), including, without
limitation: (i) principal, interest, late charges, fees and
other amounts due on account of the Liabilities or this Mortgage;
(ii) all advances by Lender to Borrower or any other person to
pay costs of erection, construction, alteration, repair,
restoration, maintenance and completion of any improvements on the
Property; (iii) all advances made or costs incurred by Lender
for the payment of real estate taxes, assessments or other
governmental charges, maintenance charges, insurance premiums,
environmental inspection, audit, testing or compliance costs, and
costs incurred by Lender for the enforcement and protection of the
Property or the lien of this Mortgage; and (iv) all legal
fees, costs and other expenses incurred by Lender by reason of any
default or otherwise in connection with the Liabilities. The total
amount of the Liabilities that may be so secured may decrease to a
zero amount from time to time, or may increase from time to time,
but the total unpaid principal balance secured at any one time
shall not exceed U.S. $26,200,000.
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1.2 Borrower
agrees that if, at any time during the term of this Mortgage or
following a foreclosure hereof (whether before or after the entry
of a judgment of foreclosure), Borrower fails to perform or observe
any covenant or obligation under this Mortgage including, without
limitation, payment of any of the foregoing, Lender may (but shall
not be obligated to) take such steps as are reasonably necessary to
remedy any such nonperformance or nonobservance and provide payment
thereof. All amounts advanced by Lender shall be added to the
amount secured by this Mortgage and the other Loan Documents (and,
if advanced after the entry of a judgment of foreclosure, by such
judgment of foreclosure), and shall be due and payable on demand,
together with interest at the Default Rate set forth in the Notes,
such interest to be calculated from the date of such advance to the
date of repayment thereof.
SECTION 2.
BORROWER’S REPRESENTATIONS, WARRANTIES AND
COVENANTS .
2.1. Payment
and Performance . Borrower shall (a) pay to Lender all
sums required to be paid by Borrower under and in accordance with
the stated terms and conditions of the Loan Documents;
(b) perform and comply with all terms, conditions and
covenants set forth in each of the Loan Documents applicable to
Borrower; (c) perform and comply with all of Borrower’s
obligations and duties as landlord under any Leases; and,
(d) take all reasonable measures as may be required from time
to time to maintain the value of the Property as security to
Lender.
2.2. Title
Warranties . Borrower hereby warrants that
(a) Borrower is the sole owner of the Property in fee simple;
(b) Borrower has the right, full power and lawful authority to
mortgage, grant, convey and assign the same to Lender in the manner
and form set forth herein; and (c) this Mortgage is a valid
and enforceable first lien on Borrower’s right, title and
interest in the Property and every part thereof.
Borrower hereby
covenants that (a) Borrower shall preserve its title to or
interest in the Property, and the validity and priority of the lien
of this Mortgage, subject only to such title exceptions regarding
the Real Estate as are reflected in Lender’s title insurance
policy for the Loan, contrary provisions of the Loan Documents, if
any, as to specific parts of the Property, and as Lender may in its
sole discretion otherwise approve in writing during the term of
this Mortgage, and Borrower shall forever warrant and defend the
same to Lender against all claims whatsoever; and (b) Borrower
shall execute, acknowledge and deliver all such further documents
or assurances as may at any time hereafter be required by Lender to
protect the lien of this Mortgage.
Besides title
insurance, Borrower shall obtain and maintain at all times
throughout the term of this Mortgage the following insurance, with
changes in the name and other particulars related to the specific
Lender at any given time as such Lender shall require by notice to
Borrower upon sale, assignment or other transfer of this
Mortgage:
a. Hazard
Insurance, in an amount not less than the Loan amount, with a
“New York Standard” or “Union” mortgagee
clause naming SunTrust Bank, its successors and/or assigns as
Mortgagee/additional loss payee.
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b. Flood
Insurance: It must be satisfactorily shown that the property is not
in a flood zone or, if it is, a flood insurance policy, or a
completed flood insurance application with a paid receipt for one
year’s premium, must be provided to Lender prior to the Loan
closing. Flood insurance coverage must be in an amount equal to the
lesser of the loan amount or the maximum limit available from all
sources, naming SunTrust Bank, its successors and/or assigns as
mortgagee/additional loss payee. Certificate of Insurance should be
sent to SunTrust Bank, P.O. Box 3303, Mail Code 4204, Tampa,
Florida 33601 (attn: Commercial Banking Division) for the benefit
of SunTrust Bank, its successors and/or assigns.
c. Worker’s
Compensation Insurance meeting applicable legal
requirements.
d. Public
Liability Insurance with minimum limits as follows:
$5,000,000.00,
Bodily injury, one occurrence.
$5,000,000.00,
Property damage, one occurrence.
This
insurance shall not be prejudiced, nor coverage to the mortgagee
invalidated:
(i) by any act or
neglect of the owner of any building if the insured is not the
owner thereof, or by any act or neglect of any occupant (other than
the insured) of any building, when such act or neglect of the owner
or occupant is not within the control of the insured; or
(ii) by failure of
the insured to comply with any warranty or condition contained in
any endorsement attached to this policy with regard to any portion
of the premises over which the insured has no control.
e. Business
Interruption Insurance in such amounts as may be required by
Mortgagee from time to time.
f. Tees and
Greens Insurance with minimum coverage of $20,000.00 per golfing
green located on the Real Estate.
Each insurance
policy required under this Section shall: (i) be written by an
insurance company authorized or licensed to do business in the
state within which the Property is located having an Alfred M. Best
Company, Inc. rating of “A-” or higher and a financial
size category of not less than IX; (ii) be for terms of a
least one year, with premium prepaid and receipts thereof provided
to Lender upon request; (iii) be subject to the reasonable
approval of Lender as to insurance companies, amounts, content,
forms of policies and expiration dates; and (iv) name Lender,
its successors and assigns: (1) as an additional insured under
all liability insurance policies, and (2) as the first Lender,
under a standard non-contributory Lender clause, on all property
insurance policies and all loss of rents or loss of business income
insurance policies.
Borrower further
agrees that each insurance policy: (i) shall provide at least
thirty (30) days’ prior written notice to Lender prior to any
policy reduction or cancellation for any reason; (ii) shall
contain an endorsement or agreement by the insurer that any loss
shall be payable to Lender in accordance with the terms of such
policy notwithstanding any act or negligence of
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Borrower which
might otherwise result in forfeiture of such insurance;
(iii) shall waive all rights of setoff, counterclaim,
deduction or subrogation against Borrower; and (iv) shall
exclude Lender from the operation of any coinsurance
clause.
At least thirty
(30) days prior to the expiration of any insurance policy,
Borrower shall furnish evidence satisfactory to Lender that such
policy has been renewed or replaced or is no longer
required.
Notwithstanding
the foregoing, in the event that Borrower fails to maintain
insurance in accordance with this Section 2.3., and Lender
elects to obtain insurance to protect its interests hereunder,
Lender may obtain insurance in any amount and of any type Lender
deems appropriate to protect Lender’s interest only and
Lender shall have no duty or obligation to Borrower to maintain
insurance in any greater amount or of any other type for the
benefit of Borrower. All insurance premiums incurred or paid by
Lender shall be at Borrower’s sole cost and expense.
Lender’s election to obtain insurance shall not be deemed to
waive any Event of Default (as hereinafter defined).
2.4. Taxes
and Other Charges . Borrower shall promptly pay and
discharge all taxes, assessments, and other governmental charges of
whatever nature imposed upon the making of the Notes or the
Mortgage, upon principal advances against the Notes, and/or upon
the Property, when the same are respectively due, but in no event
after interest or penalties commence to accrue thereon or become a
lien upon the Property.
2.5.
Escrows . If required by Lender for reasonable cause
at any time during the term of this Mortgage, Borrower shall pay to
Lender at the time of each installment due under the Notes,
commencing with the first installment due after the date that
Lender so requests, sums to establish and maintain escrow accounts
with Lender or its designee to be held in escrow to pay the same
when due for (a) taxes and assessments levied or assessed
against the Property, and/or (b) premiums on the insurance
policies required by this Mortgage, all in amounts as estimated
from time to time by Lender to be sufficient to pay such taxes and
assessments and/or premiums as they become due. Lender shall have
the right to require that such escrow items be paid in such a
manner as will in each instance result in Lender or its
designee’s having received sufficient sums to pay the next
installment of such taxes, assessments and premiums, as applicable,
one (1) month prior to the date when the same will become due,
such sums. If such escrow funds are not sufficient to pay such
taxes and assessments and/or insurance premiums, as applicable, as
the same become due, Borrower shall pay to Lender, upon request,
such additional amounts as Lender shall estimate to be sufficient
to make up any deficiency. No amount paid to Lender hereunder shall
be deemed to be trust funds but may be commingled with general
funds of Lender and no interest shall be payable thereon. Upon the
occurrence of an Event of Default, Lender shall have the right, at
its sole discretion, to apply any amounts so held against the
Liabilities.
2.6.
Transfer of Title . Borrower shall not cause or
permit any transfer of the Property or any part thereof, whether
voluntarily, involuntarily or by operation of law, nor shall
Borrower enter into any agreement or transaction to transfer, or
accomplish in form or substance a transfer, of the Property. A
“transfer” of t
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