First Amendment to Mortgage


    Exhibit
      10.8

     

    


    FIRST
      AMENDMENT TO MORTGAGE AND
      SECURITY AGREEMENT

     

    THIS
      FIRST AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT (“Amendment”),
      dated as
      of June 26, 2007, between
      COSTA BLANCA II REAL ESTATE, LLC,
      a
      Florida limited liability company, having an address at 2460 Sand Lake Road,
      Orlando, Florida 32809, COSTA
      BLANCA III REAL ESTATE, LLC,
      a
      Florida limited liability company, having an address at 2460 Sand Lake Road,
      Orlando, Florida 32809, TDS
      TOWN HOMES (PHASE 1), LLC,
      a
      Florida limited liability company, having an address at 2460 Sand Lake Road,
      Orlando, Florida 32809 and TDS
      TOWN HOMES (PHASE 2), LLC,
      a
      Florida limited liability company, having an address at 2460 Sand Lake Road,
      Orlando, Florida 32809, jointly and severally (collectively, “Mortgagor”),
      and
KENNEDY
      FUNDING, INC.
      (“Lender”),
      a New
      Jersey corporation having an address at Two University Plaza, Suite 402,
      Hackensack, New Jersey 07601 as Agent for the lenders identified in Schedule
      A
      of the Note (as hereinafter defined), in each case having an address care of
      Kennedy Funding, Inc., Two University Plaza, Suite 402, Hackensack, New Jersey
      07601 (the aforesaid Lender and lenders are hereinafter collectively referred
      to
      as “Mortgagee”).
      Mortgagor and Mortgagee may hereinafter be referred to at times individually
      as
      a “Party”
and
      collectively as the “Parties”.

     

    WITNESSETH:

     

    WHEREAS,
      Mortgagor and Mortgagee are parties to that certain Mortgage and Security
      Agreement dated as of April 20, 2007 (the “Original
      Mortgage”);
      and

     

    WHEREAS,
      Mortgagor and Mortgagee wish to amend the Original Mortgage as set forth
      below.

     

    NOW,
      THEREFORE,
      in
      consideration of the mutual covenants and agreements contained in the Original
      Mortgage, the Parties, intending to be legally bound, agree as
      follows:

     

    1. From
      and
      after the effective date of this Amendment, the following text is hereby added
      as a new Section 6.28 of the Original Mortgage.

     

     

    


    
      
        
          


           

          
          

        

        
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      “Section
        6.28. CROSS
        COLLATERALIZATION.
        Mortgagor
        understands and agrees that the Loan is and will be cross-collateralized
        with
        that certain loan dated
        as
        of June 26, 2007 in
        the
        amount of Four
        Million Four Hundred Fifty Thousand ($4,450,000) Dollars by and between Costa
        Blanca I Real Estate, LLC, a Florida limited liability company and Mortgagee,
        as
        Agent (the “Costa
        I Loan”).
        It is
        understood and agreed that a default (beyond any applicable grace periods)
        under
        the terms and conditions of (i) that certain Loan
        and
        Security Agreement dated as of June 26, 2007 (“Costa
        I Loan Agreement”),
        between Costa
        Blanca I Real Estate, LLC (“Costa
        I”)
        and
        Mortgagee, as Agent, and/or (ii) any other document or agreement given or
        delivered to Mortgagee in connection therewith, including without limitation
        that certain (a) Promissory Note in the original principal amount of Four
        Million Four Hundred Fifty Thousand ($4,450,000) Dollars dated as of June
        26, 2007, and (b) and that certain Mortgage and Security Agreement
        filed
        in the County of Polk, State of Florida which was given as security for the
        repayment of said Promissory Note (the “Costa
        I Loan Documents”)
        will
        also constitute a default under the terms and conditions of the Loan and
        will
        entitle Mortgagee to all rights and remedies available to Mortgagee under
        the
        Costa I Loan Documents. It is further understood and agreed that in the event
        Mortgagor defaults (beyond any applicable grace periods) under the terms
        and
        conditions of the Loan or any of the Loan Documents executed or delivered
        in
        connection with the Loan, Mortgagee shall have the right to declare the Costa
        I
        Loan in default and accelerate same and avail itself of any rights and remedies
        thereunder. Mortgagor shall execute any and all documents necessary to
        effectuate such cross-collateralization.”

    

     

    2. From
      and
      after the effective date of this Amendment, Section 2.20(f) of the Original
      Mortgage is deleted in its entirety and replaced with the following
      text.

     

    “The
      Mortgagor acknowledges and agrees that the Note may only be prepaid in whole
      if
      either (1) all amounts due and owning to Mortgagee pursuant to the Costa I
      Loan
      Documents are paid in full and no obligations to Mortgagee are outstanding
      thereunder, or (2) the Project (as defined in the Loan Agreement) is fully
      completed, as determined by Mortgagee in its sole discretion, or (3) the
      Mortgagor deposits with Mortgagee, in cash, an amount equal to the greater
      of
      (i) the amount of the Holdback (as defined in the Loan Agreement), and (ii)
      the
      amount necessary to complete the Project, as determined by Mortgagee in its
      reasonable discretion (“Cash
      Collateral”).
      

     

     

     

    


    
      
        
          


           

          
          

        

        
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    Notwithstanding
      the foregoing, in the event the Mortgagor deposits the
      Cash Collateral with Mortgagee, regardless of whether the Note is prepaid in
      whole, and no Event of Default
      hereunder or under any other Loan Documents or any of the Costa I Loan Documents
      shall have occurred beyond any applicable cure periods, Mortgagee shall, at
      the
      sole cost and expense of Mortgagor, release its lien on that portion of the
      Mortgaged Property owned by TDS Amenities, Inc. which is not the TDS Property
      (“TDS
      Remainder Property”);
      provided,
      however,
      that in
      addition to the Cash Collateral, the Mortgagor shall provide to Mortgagee,
      (a)
      written evidence, satisfactory to Mortgagee in its reasonable discretion, that
      the completion of the Project (as defined in the Loan Agreement), the resort
      water complex (including a wave pool, flowrider surfing pool, water slides,
      spas
      and a four-story children’s water park) and the 16,000 square foot pool-side
      sports bar (collectively, “Amenities”), each of which shall be located on or
      adjacent to the Mortgaged Property, shall be partially financed in an amount
      of
      no less than $5,800,000 (i.e. $2,900,000 plus the Cash Collateral) by an
      institutional lender, (b) documentation evidencing that the swimming pool on
      the
      TDS Remainder Property will be constructed, to Mortgagee’s reasonable
      satisfaction, in accordance with the plans and specifications provided to
      Mortgagor by Mortgagee and the contract submitted to Mortgagee from Weller
      Pools, (c) written evidence that the owners of all or any portion of the
      remainder of the Mortgaged Property shall have access to, and the ability to
      use, the swimming pool constructed on the TDS Remainder Property and the other
      Amenities pursuant to easements established by the Mortgagor and reasonably
      acceptable to Mortgagee, (d) written evidence that Mortgagee shall have
      continued access into and across the TDS Remainder Property pursuant to
      easements established by the Mortgagor and reasonably acceptable to Mortgagee
      to
      complete the Project, if necessary, (e) such other documents as may be required
      by Mortgagee in its reasonable discretion, and (f) written evidence that the
      construction contract submitted to Mortgagee from Weller Pools to complete
      the
      Project is still in full force and effect. 

     

     

    
      
        
          


           

          
          

        

        
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      The
        Cash
        Collateral shall be held by Mortgagee as additional security for (1) the
        repayment of the Loan and the Costa I Loan, (2) the repayment of all obligations
        owed to Mortgagee pursuant to the Loan Documents and the Costa I Loan
        Documents, and (3) the completion of the Project, and shall be disbursed
        to
        Mortgagor or Costa I, as applicable, in accordance with the terms and conditions
        of Sections 2(e) and 2(j) of the Loan Agreement or Sections 2(e) and 2(j)
        of the
        Costa I Loan Agreement, as applicable.

    

     

    Notwithstanding
      the foregoing, upon an Event of Default, Mortgagee may, in its sole discretion,
      apply all or any portion of the Cash Collateral to any outstanding payment,
      sum
      or obligation of Mortgagor under the Loan Documents or the Costa I Loan
      Documents, including without limitation, the completion of the
      Project.”

     

    3. Original
      Mortgage.
      Mortgagor acknowledges and agrees that the Original Mortgage is in full force
      and effect as of the date hereof.

     

    4. Integration
      of Amendment and Original Mortgage. 
      From and after the effective date of this Amendment, the Original Mortgage
      and
      this Amendment shall be read as one agreement.  Except as set forth in this
      Amendment, all other terms and conditions of the Original Mortgage are not
      being
      modified or amended, and shall remain in full force and effect.

     

    5. Counterparts.
      This
      Amendment may be executed in any number of counterparts, and each when so
      executed and delivered shall be an original, but all the counterparts shall
      together constitute one and the same instrument. 

     

    [Remainder
      of Page Intentionally Left Blank]

    


    
      
        
          


           

          
          

        

        
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    IN
      WITNESS WHEREOF, Mortgagor has executed this First Amendment to Mortgage and
      Security Agreement as of the date first above written.

     

    
      	
              WITNESS:

               

               

               

               

               

               

               

               

               

              /s/
                Jason Williams

              Name:
                Jason Williams

            	
              MORTGAGOR:

               

              COSTA
                BLANCA II REAL ESTATE, LLC,
                a
                Florida limited liability company

               

              By:
                Tierra del Sol Resort (Phase 2), Ltd., a Florida limited partnership,
                its
                manager

               

              By:
                TDS Management, LLC, a Florida limited liability company, its general
                partner

               

               

               

              By:
                /s/ Malcolm J. Wright

              Name:
                Malcolm J. Wright

              Title:
                Manager

               

               

               

               

            
	
              WITNESS:

               

               

               

               

               

               

               

               

              /s/
                Jason Williams

              Name:
                Jason Williams

            	
              MORTGAGOR:

               

              COSTA
                BLANCA III REAL ESTATE, LLC,
                a
                Florida limited liability company

               

              By:
                Tierra del Sol Resort (Phase 2), Ltd., a Florida limited partnership,
                its
                manager

               

              By:
                TDS Management, LLC, a Florida limited liability company, its general
                partner

               

               

               

              By:
                /s/ Malcolm J. Wright

              Name:
                Malcolm J. Wright

              Title:
                Manager

               

            


    

     

    
      
        
        

      

      
        -5-

        
          

        

      

      
        
        

      

    

    
      	
              WITNESS:

               

               

               

               

               

               

               

               

              /s/
                Jason Williams

              Name:
                Jason Williams

            	
              MORTGAGOR:

               

              TDS
                TOWN HOMES (PHASE 1), LLC,
                a
                Florida limited liability company

               

              By:
                Tierra del Sol Resort (Phase 1), Ltd., a Florida limited partnership,
                its
                manager

               

              By:
                TDS Management, LLC, a Florida limited liability company, its general
                partner

               

               

               

              By:
                /s/ Malcolm J. Wright

              Name:
                Malcolm J. Wright

              Title:
                Manager

               

            
	
              WITNESS:

               

               

               

               

               

               

               

               

               

               

               

               

              /s/
                Jason Williams

              Name:
                Jason Williams

            	
              MORTGAGOR:

               

              TDS
                TOWN HOMES (PHASE 2), LLC,
                a
                Florida limited liability company

               

              By:
                Tierra del Sol Resort (Phase 2), Ltd., a Florida limited partnership,
                its
                manager

               

              By:
                TDS Management, LLC, a Florida limited liability company, its general
                partner

               

               

               

               

               

               

              By:
                /s/ Malcolm J. Wright

              Name:
                Malcolm J. Wright

              Title:
                Manager

               

            


    

     

    
      
        
        

      

      
        -6-

        
          

        

      

      
        
        

      

    

    
      	
              WITNESS:

               

               

               

              /s/
                Jason Williams

              Name:
                Jason Williams

            	
              MORTGAGOR:

               

              TDS
                AMENITIES, INC.
                a
                Florida corporation

               

              By:
                /s/ Malcolm J. Wright

              Name:
                Malcolm J. Wright

              Title:
                Chief Executive Officer

               

            


    

    


     

    
      	
              STATE
                OF FLORIDA

            	
              )

            
	 	
              )
                ss.:

            
	
              COUNTY
                OF ORANGE

               

            	
              )

               

            


    

    I
      certify
      that on June 20th, 2007, Malcolm J. Wright came before me in person and
      stated to my satisfaction that he/she:

     

    (a) made
      the
      attached instrument; and

     

    (b) was
      authorized to and did execute this instrument on behalf of and as Manager of
      TDS
      MANAGEMENT, LLC, a Florida limited liability company, the General Partner of
      TIERRA DEL SOL RESORT (PHASE 2), LTD., a Florida limited partnership, the
      Manager of COSTA BLANCA II REAL ESTATE, LLC, a Florida limited liability company
      (the “Company”), the entity named in this instrument, as the free act and deed
      of the Company, by virtue of the authority granted by its operating agreement
      and its members.

     

     

    
 

    
      	 	
              /s/
                J.K. Hudson

              NOTARY
                PUBLIC

               

            


    

    


    
 

     

    


     

    


    
      
        
          


           

          
          

        

        
          -7-

          
            

          

        

        
          
          

        

      

    

    


    


     

    
      	
              STATE
                OF FLORIDA

            	
              )

            
	 	
              )
                ss.:

            
	
              COUNTY
                OF ORANGE

               

            	
              )

               

            


    

    


     

    I
      certify
      that on June 20th, 2007, Malcolm J. Wright came before me in person and stated
      to my satisfaction that he/she:

     

    (a)
       made
      the
      attached instrument; and

     

    (b)
       was
      authorized to and did execute this instrument on behalf of and as Manager of
      TDS
      MANAGEMENT, LLC, a Florida limited liability company, the General Partner of
      TIERRA DEL SOL RESORT (PHASE 2), LTD., a Florida limited partnership, the
      Manager of COSTA BLANCA III REAL ESTATE, LLC, a Florida limited liability
      company (the “Company”), the entity named in this instrument, as the free act
      and deed of the Company, by virtue of the authority granted by its operating
      agreement and its members.

     

     

     

    
      	 	
              /s/
                J.K. Hudson

              NOTARY
                PUBLIC

            


    

    


    


    
      	
              STATE
                OF FLORIDA

            	
              )

            
	 	
              )
                ss.:

            
	
              COUNTY
                OF ORANGE

               

            	
              )

               

            


    

     

    I
      certify
      that on June 20th, 2007, Malcolm J. Wright came before me in person and
      stated to my satisfaction that he/she:

     

    (a) made
      the
      attached instrument; and

     

    (b) was
      authorized to and did execute this instrument on behalf of and as Manager of
      TDS
      MANAGEMENT, LLC, a Florida limited liability company, the General Partner of
      TIERRA DEL SOL RESORT (PHASE 1), LTD., a Florida limited partnership, the
      Manager of TDS TOWN HOMES (PHASE 1), LLC, a Florida limited liability company
      (the “Company”), the entity named in this instrument, as the free act and deed
      of the Company, by virtue of the authority granted by its operating agreement
      and its members.

     

     

    
      	 	
              /s/
                J.K. Hudson

              NOTARY
                PUBLIC

            


    

    


    


    
      
        
          


           

          
          

        

        
          -8-

          
            

          

        

        
          
          

        

      

    

    


    


    
      	
              STATE
                OF FLORIDA

            	
              )

            
	 	
              )
                ss.:

            
	
              COUNTY
                OF

            	
              )

            


    

    


    


    I
      certify
      that on June 20th, 2007, Malcolm J. Wright came before me in person and
      stated to my satisfaction that he/she:

     

    (a)
       made
      the
      attached instrument; and

     

    (b)
       was
      authorized to and did execute this instrument on behalf of and as Manager of
      TDS
      MANAGEMENT, LLC, a Florida limited liability company, the General Partner of
      TIERRA DEL SOL RESORT (PHASE 2), LTD., a Florida limited partnership, the
      Manager of TDS TOWN HOMES (PHASE 2), LLC, a Florida limited liability company
      (the “Company”), the entity named in this instrument, as the free act and deed
      of the Company, by virtue of the authority granted by its operating agreement
      and its members.

     

                                      
                                                                        
      

    
      	 	
              /s/
                J.K. Hudson

              NOTARY
                PUBLIC

            


    

    


    


    
      	
              STATE
                OF FLORIDA

            	
              )

            
	 	
              )
                ss.:

            
	
              COUNTY
                OF ORANGE

               

            	
              )

               

            


    

    I
      certify
      that on June 20th, 2007, Malcolm J. Wright came before me in person and
      stated to my satisfaction that he/she:

     

    (a)
       made
      the
      attached instrument; and

     

    (b)
       was
      authorized to and did execute this instrument on behalf of and as Chief
      Executive Officer of TDS AMENITIES, INC., a Florida corporation (the “Company”),
      the entity named in this instrument, as the free act and deed of the Company,
      by
      virtue of the authority granted by its bylaws and its board of
      directors.

     

     

     

    
      	 	
              /s/
                J.K. Hudson

              NOTARY
                PUBLIC

            


    

    


     

    
      
        
        

      

      
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