AMENDMENT TO MASTER LOAN AND SECURITY AGREEMENT
AMENDMENT
TO MASTER LOAN AND SECURITY AGREEMENT
THIS
AMENDMENT TO MASTER LOAN AND SECURITY AGREEMENT
(“Amendment”)
made
this 29th
day of
March, 2007 by and among SUNTRUST
BANK, with
its
principle banking office located at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇
(“Bank”),
and
CONSOLIDATED-TOMOKA
LAND CO.,
a
Florida corporation (“Borrower”).
RECITALS
Borrower
and Bank entered into a Master Loan and Security Agreement, dated July 1, 2002
(“Loan
Agreement”).
The
Loan
Agreement was executed as part of the loan documents evidencing the Bank’s Eight
Million ($8,000,000.00) Dollar loan to Borrower, and as further evidenced by
the
SunTrust Promissory Note, dated July 1, 2002 in the original principal amount
of
Eight Million ($8,000,000.00) Dollars, (“Note”)
executed by Borrower.
The
parties desire to amend certain terms and provisions of the Loan Agreement
as
more particularly set forth below.
Unless
and except as expressly modified herein, the capitalized terms and defined
terms
utilized and set forth herein shall have the means and definitions ascribed
to
them in the Loan Agreement.
NOW,
THEREFORE,
for the
sum of TEN DOLLARS ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties hereto
agree as follows:
1. Recitals.
The
above recitals are true and correct and are expressly incorporated
herein.
2. Definitions.
Section
1.1 is hereby modified to delete the following sub-paragraphs: (f), (i), (k),
(n), (o), (p), (q), (u), (x), (z), (bb), (cc), (dd), (ee), (ff), (gg), (hh).
Sub-Paragraph 1.1 (j) is hereby restated in its entirety to provide as follows:
Loan
Documents
shall
mean this Agreement, the Note, Assignment of Loan Documents, as well as any
other documents, instruments or agreements executed in connection with the
transactions contemplated herein.
3. Annual
Reports.
Section
2.1, Sub-Paragraph (12) is hereby restated as follows:
The
Borrower shall furnish to Bank, within ninety (90) days after the end of each
fiscal year, a profit loss statement, reconciliation of surplus statement of
the
Borrower for each fiscal year, and a balance sheet at the end of such year,
audited by independent, certified public accountants of recognized standing,
selected by Borrower and satisfactory to Bank. Tax returns shall be furnished
within thirty (30) days from the date of filing with the United States Treasury
Department. Borrower shall provide annual reports as required herein beginning
with the calendar year 2007. All reports shall be prepared in accordance with
generally accepted accounting standards and certified by the Chief Financial
Officer of the Borrower as being true and accurate.
4. Loan
Security.
Section
2.1 Sub-Paragraph 13 of the Loan Agreement is hereby deleted in its
entirety.
5. Security
and Cross-Default.
Section
2.2 is hereby deleted and restated to provide as follows:
2.2.1
Security:
As
security for the payment of the Note described in paragraph 2.1 and all
substitutions, renewals or extensions thereof, the Borrower assigns, pledges
and
grants to Bank a security interest in the following:
a.) All
collateral security documents assigned to Bank referenced in the attached
Assignment of Loan Documents except the mortgage and collateral loan documents
released pursuant to that certain Release and Satisfaction of Mortgage and
Collateral executed by Bank contemporaneously herewith;
b.) The
Rate
Swap Agreement executed by Borrower;
c.) The
Permanent Mortgage Loan Commitment issued to Borrower by Bank for this
transaction. The Loan Commitment shall survive the closing and all terms and
conditions of said Loan Commitment as amended and modified shall remain fully
binding obligations of all parties after closing.
All
of
the foregoing shall be collectively referred to as "Collateral".
2.2.2
Borrower's
Agreement Regarding Cross Default.
This
Agreement and Note are made and issued in conjunction with other credit
commitments and loans to the Borrower from Bank. A default under this Agreement
and/or the Note shall constitute a default under all commitments and loans
issued to Borrower by Bank. A default under any other commitment or loan
documents (i.e., Notes, Mortgages, UCC-1's Assignments of Rent, Loan Agreements,
etc.) by Borrower regarding a loan transaction between Borrower and Bank shall
be deemed a default in the Note and this Agreement. A default in the terms
and
conditions that certain Modified and Additional Advance Promissory Note dated
of
even date herewith, in the principal amount of Twenty Million ($20,000,000.00)
Dollars, Master Loan and Security Agreement, dated March 31, 2002, as modified
by the Amendment to Master Loan and Security Agreement, dated August 15, 2003
and that certain Second Amendment to Master Loan and Security Agreement, dated
of even date herewith, shall be deemed a default in the terms of this Agreement
and the Note.
A
default
in any one is a default in all and Bank shall have any and all remedies as
provided in any and all of the foregoing referenced documents and/or
agreements.
6. Authorization
of Borrower.
Section
3.2, Sub-Paragraph (c) is hereby deleted in its entirety.
7. Priority
of Security Interest.
Section
3.8 of the Loan Agreement is hereby deleted in its entirety.
8. Affirmative
Covenants.
Sections 5.1, 5.2, 5.3 and Section 5.4, of the Loan Agreement are hereby
deleted.
9. Default.
Sub-Paragraph 7.1 (f) is restated in its entirety to provide:
(f)
Default be made in the Loan Documents.
Section
7.2 of the Loan Agreement is hereby deleted.
10. Negative
Covenants.
Section
8.1 through 8.6, inclusive of the Loan Agreement are deleted and Section 8.1
is
restated as follows:
8.1
Indebtedness.
Without
the prior written consent of the Bank, granted or withheld in its sole
discretion, Borrower shall not, in any single fiscal year, incur, create,
assume, or add any additional indebtedness or liability in an amount which
exceeds One Million ($1,000,000.00) Dollars in the aggregate (“Annual
New Indebtedness Limitation”).
For
the purposes of calculating the Annual New Indebtedness Limitation, the
aggregate debt amount, shall not include, for the sole purposes of this Section,
indebtedness which is non-recourse to the Borrower, or indebtedness assumed
by
Borrower in the acquisition of real property to be held by Borrower for
investment purposes.
11. Cross
Termination.
This
Agreement and the Note are made and issued in conjunction with a Twenty Million
($20,000,000.00) Dollar loan facility (“$20,000,000.00
Loan Facility”)
as
evidenced by a Modified and Additional Advance Promissory Note, in the original
principal amount of Twenty Million ($20,000,000.00) Dollars, dated March 29,
2007, executed by Borrower in favor of Bank (“$20,000,000.00
Note”).
In
the event of the payment and satisfaction of the $20,000,000.00 Note by
Borrower, which payment and satisfaction shall be deemed to be a termination
of
the $20,000,000.00 Loan Facility, then the entire amount due to Bank from
Borrower pursuant to the Note, shall immediately be due and
payable.
12. Reaffirmation.
Borrower agrees, stipulates and confirms that the loan documents, including
this
Amendment and the Note are valid, binding and enforceful in accordance with
their respective terms, and nothing herein contained shall invalidate, mitigate
or offset the Borrower’s obligation to pay the indebtedness evidenced by the
Note or to perform the obligations set forth in the Loan Agreement, as herein
modified.
13. Miscellaneous.
Except
as expressly provided for herein, all other terms and provisions of the Loan
Agreement remain in full force and effect.
IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment to be executed on the date shown
below
the signature of each.
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WITNESSES:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
Witness
Signature
Printed
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Witness
Signature
Printed
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
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BANK:
SUNTRUST
BANK
By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
First Vice President
Signature
Date: March
29,
2007___
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WITNESSES:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
Witness
Signature
Printed
Name: ▇▇▇▇▇
▇▇▇▇▇▇
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Witness
Signature
Printed
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
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BORROWER:
CONSOLIDATED-TOMOKA
LAND CO.,
a
Florida corporation
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Sr. Vice President and Chief Financial Officer
Signature
Date: March
29, 2007_______
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