EXHIBIT 10.7
Recording requested by Xxxxxx X. Xxxxxx, Esq.
and when recorded return to: Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxx-Xxxxx, XX 00000
STATE OF GEORGIA )
) MODIFICATION AGREEMENT
COUNTY OF XXXXXX )
THIS MODIFICATION AGREEMENT ("Modification Agreement" or "Agreement")
is made and entered into as of the 21st day of April, 2004, among METROPOLITAN
LIFE INSURANCE COMPANY, a New York corporation ("Metropolitan"); METLIFE BANK,
N.A., a national banking association ("Bank"; Metropolitan and Bank are
collectively referred to as "Lender" or "Grantee"); XXXXX ACP, LLC, a Delaware
limited liability company (the "Borrower" or "Grantor"); and XXXXX EQUITY, INC.,
a Florida corporation ("Guarantor");
PRELIMINARY STATEMENTS
A. Reference is hereby made to the following documents (collectively,
as assumed and modified, the "Loan Documents"):
(i) Deed to Secure Debt and Security Agreement dated December
30, 2003, made by Atlantic Center Plaza, LLC in favor of Metropolitan
Life Insurance Company and MetLife Bank, N.A., as assumed by Xxxxx ACP,
LLC pursuant to and amended by the Assumption Agreement (as assumed and
amended, the "Security Deed") recorded in the Real Estate Records of
Xxxxxx County, Georgia in Book 36786, Page 279;
(ii) Assignment of Leases dated December 30, 2003, made by
Atlantic Center Plaza, LLC in favor of Metropolitan Life Insurance
Company and MetLife Bank, N.A., as assumed by Xxxxx ACP, LLC pursuant
to and amended by the Assumption Agreement (as assumed and amended, the
"Assignment") recorded in the Real Estate Records of Xxxxxx County,
Georgia in Book 36786, Page 315;
(iii) UCC Financing Statement naming Xxxxx ACP, LLC as debtor
and Metropolitan Life Insurance Company and MetLife Bank, N.A. as
secured parties, recorded in the UCC Records of Xxxxxx County, Georgia
in File No. 060200400949;
(iv) UCC Financing Statement naming Xxxxx ACP, LLC as debtor
and Metropolitan Life Insurance Company and MetLife Bank, N.A. as
secured parties, recorded in the UCC Records of the Secretary of State
of Delaware in File No. 40258741;
(v) UCC Financing Statement naming Xxxxx ACP, LLC as debtor
and Metropolitan Life Insurance Company and MetLife Bank, N.A. as
secured parties, filed as a fixture filing and recorded in the Real
Estate Records of Xxxxxx County, Georgia in Book 36957, Page 180;
(vi) Promissory Note dated December 30, 2003, made by Atlantic
Center Plaza, LLC to the order of Metropolitan Life Insurance Company
in the principal face amount of $74,000,000.00, as assumed by Xxxxx
ACP, LLC pursuant to and amended by the Assumption Agreement (as
assumed and amended, "Metropolitan Note A"); and Promissory Note dated
December 30, 2003, made by Atlantic Center Plaza, LLC to the order of
MetLife Bank, N.A. in the principal face amount of $6,000,000.00, as
assumed by Xxxxx ACP, LLC pursuant to and amended by the Assumption
Agreement (as assumed and amended, "Bank Note A"; Metropolitan Note A
and Bank Note A are collectively referred to as "Note A");
(vii) Promissory Note dated December 30, 2003, made by
Atlantic Center Plaza, LLC to the order of Metropolitan Life Insurance
Company in the principal face amount of $9,000,000.00, as assumed by
Xxxxx ACP, LLC pursuant to and amended by the Assumption Agreement (as
assumed and amended, "Metropolitan Note B"); and Promissory Note dated
December 30, 2003, made by Atlantic Center Plaza, LLC to the order of
MetLife Bank, N.A. in the principal face amount of $1,000,000.00, as
assumed by Xxxxx ACP, LLC pursuant to and amended by the Assumption
Agreement (as assumed and amended, "Bank Note B"; Metropolitan Note B
and Bank Note B are collectively referred to as "Note B"; and Note A
and Note B are collectively referred to as the "Notes"). The parties
acknowledge that Note B was prepaid and canceled immediately following
the transaction evidenced by the Assumption Agreement;
(viii) That certain Assignment of Interest Rate Cap Agreement
and Security Agreement dated as of December 30, 2003 by Atlantic Center
Plaza, LLC in favor of Metropolitan Life Insurance Company and MetLife
Bank, N.A., as assumed by Xxxxx ACP, LLC pursuant to and amended by the
Assumption Agreement (as assumed and amended, the "Assignment of
Interest Rate Cap Agreement");
(ix) Affidavit of Ownership and Certification of Atlantic
Center Plaza, LLC dated of even date with the Notes executed by
Atlantic Center Plaza, LLC in favor of Metropolitan Life Insurance
Company and MetLife Bank, N.A., as assumed by Xxxxx ACP, LLC pursuant
to and amended by the Assumption Agreement (as assumed and amended, the
"Affidavit of Ownership");
(x) Certification of Rent Roll and Lease Status dated of even
date with the Notes executed by Atlantic Center Plaza, LLC in favor of
Metropolitan Life Insurance Company and MetLife Bank, N.A., as assumed
by Xxxxx ACP, LLC pursuant to and amended by the Assumption Agreement
(as assumed and amended, the "Certification of Rent Roll");
(xi) Letter Agreement Regarding Premiums of even date with the
Notes by and among Atlantic Center Plaza, LLC and Metropolitan Life
Insurance Company and MetLife Bank, N.A., as assumed by Xxxxx ACP, LLC
pursuant to and amended by the Assumption Agreement (as assumed and
amended, the "Letter Agreement Regarding Premiums");
(xii) Letter Agreement Regarding Impositions of even date with
the Notes by and among Atlantic Center Plaza, LLC and Metropolitan Life
Insurance Company and MetLife Bank, N.A., as assumed by Xxxxx ACP, LLC
pursuant to and amended by the Assumption Agreement (as assumed and
amended, the "Letter Agreement Regarding Impositions");
(xiii) Tenant Improvement Reserve Agreement of even date with
the Notes by and among Atlantic Center Plaza, LLC and Metropolitan Life
Insurance Company and MetLife Bank, N.A., as assumed by Xxxxx ACP, LLC
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pursuant to and amended by the Assumption Agreement (as assumed and
amended, the "Tenant Improvement Reserve Agreement"); and
(xiv) Assumption and Modification Agreement dated as of
January 27, 2004 among Metropolitan Life Insurance Company, MetLife
Bank, N.A., Xxxxx ACP, LLC, Xxxxx Equity, Inc., Atlantic Center Plaza,
LLC, and Xxxxxxxx X. Xxxxx and X.X. Land, Jr. (the "Assumption
Agreement") recorded in the Real Estate Records of Xxxxxx County,
Georgia in Book 36,957, Page 165.
The real estate, fixtures and personal property described in the Loan Documents
are sometimes collectively referred to as the "Property".
B. Reference is also made to the following documents:
(i) That certain Unsecured Indemnity Agreement dated December
30, 2003 executed by Atlantic Center Plaza, LLC in favor of
Metropolitan Life Insurance Company and MetLife Bank, N.A., as assumed
by Xxxxx ACP, LLC pursuant to and amended by the Assumption Agreement
(as assumed and amended, the "Unsecured Indemnity Agreement").
C. The parties acknowledge that Note B (as defined in the Security
Deed) has been paid in full. The parties further acknowledge that Note A has
been modified pursuant to the Note A Amendments, as defined below. In addition,
the Borrower and the Guarantor have requested that the Lender amend and modify
the Loan Documents and certain other documents in certain respects.
D. The Lender, the Borrower and the Guarantor now desire to provide for
the modification and extension of the Loan Documents and certain other documents
by the Borrower. In addition, the Lender and the Borrower now desire to modify
and amend the provisions of the Loan Documents and certain other documents in
the manner hereinafter set forth, it being specifically understood that except
as herein modified and amended, the terms and provisions of such documents shall
remain unchanged and continue in full force and effect as therein written.
AGREEMENT
NOW, THEREFORE, the Lender, Borrower, and Guarantor, in consideration
of the Preliminary Statements and for the purposes stated therein, and for other
valuable consideration, receipt of which is hereby acknowledged, do hereby agree
as follows:
1. RECITALS. The Recitals are incorporated herein by reference and
shall be deemed a part of this Agreement.
2. MODIFICATION OF NOTE A. The parties acknowledge that the Note A has
been modified and amended pursuant to (i) that certain Amendment to Metropolitan
Note A dated of even date herewith among the Borrower and Metropolitan (the
"Amendment to Metropolitan Note A") and (ii) that certain Amendment to Bank Note
A dated of even date among Borrower and Bank ("Amendment to Bank Note A"; the
Amendment to Metropolitan Note A and Amendment to Bank Note A are collectively
referenced to as the "Note A Amendments".
3. EXPENSES. Borrower shall pay all expenses incurred by Lender in
connection with the preparation, execution, and implementation of this Agreement
and the Note A Amendments including, without limitation, all title, escrow and
reasonable attorneys' fees and expenses.
4. MODIFICATION OF SECURITY DEED. The Security Deed is hereby amended
as follows:
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(a) NOTES. All references to the terms "Note", "Notes",
"Metropolitan Note A", or "Bank Note A", as the case may be, shall mean such
instruments together with the modifications thereto made pursuant to the Note A
Amendments and together with any further modifications, extensions or renewals
thereof now or hereafter executed. Note B has previously been prepaid in full.
(b) MATURITY DATE. The reference in the Security Deed for the
Maturity Date of the Notes is hereby extended from December 1, 2006 to January
1, 2015.
(c) INSURANCE. The Business Income (Rent Loss) Insurance
referenced on page 1 of the Security Deed shall continue after year three to be
one year's Business Income as described in Section 3.01(a)(3).
(d) FUTURE ADVANCES. The parties acknowledge that the Secured
Indebtedness shall include any and all present and future advances under the
Notes, it being understood that the principal amount of present advances at the
time of recordation of this Modification Agreement under Note A is Seventy-Five
Million Eight Hundred Seventy-Three Thousand Seven Hundred One and 44/100
Dollars ($75,873,701.44), and that the Note A provides for additional future
advances of principal in an amount of $4,126,298.56 such that the maximum
principal amount advanced under Note A may be an amount of up to $80,000,000.00.
(e) BOOKS AND RECORDS. Section 4.01(f) of the Security Deed is
amended and restated to read as follows: "Notwithstanding the foregoing, with
respect to annual financial statements and rent rolls, Grantee will accept
annual financial statements on Grantor certified by an officer of Grantor and
rent rolls certified by an officer of the Grantor, and annual financials
prepared by a national certified public accountant only for the Liable Party
financial statements, which annual financial statements shall be due ninety (90)
days following the calendar year end."
(f) TRANSFERS. A new Section 10.01(f) is added to the Security
Deed as follows:
Notwithstanding the prohibitions set forth in Section 10.01(a)
above, the Grantor shall be permitted to transfer a membership or
partnership interest, as applicable, in Grantor to a third party
investor so long as (i) no Event of Default then exists, (ii) the ERISA
warranties and representations set forth in Section 8.01 above shall
remain true before and after such Transfer, (iii) Grantor shall pay a
processing fee equal to $25,000 plus all reasonable costs and expenses
incurred by Grantee in connection with such Transfer, (iv) such
investor has a net worth of $85 million and is subject to Grantee's
reasonable approval and (v) Liable Party retains an ownership interest
in Grantor either directly or indirectly of at least 19% of all
ownership interests in Grantor. The investor shall continue to retain
during the term of the Loan an equity interest in the Grantor of 81% or
less.
(g) SUBORDINATE FINANCING. The following is hereby added to
Section 10.02 of the Security Deed: "Notwithstanding the provisions of this
Section 10.02, Grantor will be allowed to place mezzanine financing secured by
ownership interests in Grantor or its constituents (but not a second lien on the
Property) in connection with a transfer to an institutional investor as set
forth in Section 10.01(f) above; provided the total debt to equity ratio does
not exceed 75%, as determined by Grantee."
(h) LEASING GUIDELINES. Exhibit B "Leasing Guidelines" to the
Security Deed is hereby replaced with the Exhibit "B" attached hereto.
(i) REFERENCE TO LOAN DOCUMENTS. All references in the
Security Deed to the terms "Loan Documents" or "Unsecured Indemnity Agreement"
shall be deemed to include the modifications thereto effected by this
Modification Agreement, together with any modifications, renewals or extensions
hereafter made with respect thereto.
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(j) LIABILITY OF GRANTOR. Section 9.01 of the Security Deed is
hereby amended as follows:
(i) Section 9.01(a)(x) which provides recourse
liability with respect to the Section 21 "Interest Rate Protection" of
the Notes shall not be applicable after January 1, 2005 since Section
(f) of the Note Amendments acknowledges that Section 21 of the Notes
will not be applicable after January 1, 2005.
(ii) Section 9.01(a)(xi) which provides recourse
liability with respect to the Leasing Reserve Holdback Agreement is no
longer applicable since the Leasing Reserve Holdback Agreement was
terminated pursuant to paragraph 6(a) of the Assumption Agreement.
(iii) The corresponding sections of Note A are
amended to conform to the above provisions (i) and (ii).
5. GENERAL MODIFICATIONS TO LOAN DOCUMENTS AND UNSECURED INDEMNITY
AGREEMENT. The Loan Documents and Unsecured Indemnity Agreement are hereby
amended such that all references in the Loan Documents or Unsecured Indemnity
Agreement to any other Loan Document or the Unsecured Indemnity Agreement are
hereby amended to refer to such instruments as amended by this Modification
Agreement or the Note A Amendments, as the case may be, together with any
modifications, renewals or extensions hereafter made with respect thereto.
6. NO IMPAIRMENT OF SECURITY, ETC. It is mutually agreed by and between
the parties hereto that this Modification Agreement shall become a part of the
Loan Documents and Unsecured Indemnity Agreement by reference and that nothing
herein contained shall impair the security now held for the indebtedness, nor
shall waive, annul, vary or affect any provision, condition, covenant or
agreement contained in the Loan Documents and Unsecured Indemnity Agreement,
except as herein amended, nor affect or impair any rights, powers or remedies
under the Loan Documents and Unsecured Indemnity Agreement, as hereby amended,
or any of them. Furthermore, the Lender does hereby reserve all rights and
remedies it may have as against all parties who may hereafter become secondarily
liable for the repayment of the indebtedness evidenced by the Notes.
7. REAFFIRMATION OF INDEBTEDNESS. The Borrower promises and agrees to
pay the indebtedness evidenced by the Notes, in accordance with the terms
thereof and agrees to perform all of the requirements, conditions and
obligations under the terms of the Loan Documents and Unsecured Indemnity
Agreement, as hereby modified and amended, said documents being hereby ratified
and affirmed. The execution and delivery hereof shall not constitute a novation
or modification of the lien, encumbrance or security title of the Security Deed,
which Security Deed shall retain its priority as originally filed for record.
8. CONSENT OF GUARANTOR. Reference is hereby made to that certain
Guaranty Agreement dated January 27, 2004, executed by Guarantor in favor of
Lender (the "Guaranty Agreement"). All references in the Guaranty Agreement to
the Notes, the Unsecured Indemnity Agreement, the Assumption Agreement and any
other Loan Documents shall be deemed to include such instruments as modified by
this Modification Agreement and the Note A Amendments, as applicable, together
with all further modifications, extensions or renewals hereafter made. The
Guarantor hereby acknowledges receipt of copies of this Modification Agreement
and the Note A Amendments and hereby consents to the execution, delivery and
performance thereof and hereby further agrees that the Guarantor shall remain
fully obligated under the terms of the Guaranty Agreement, as amended hereby,
following the execution of this Modification Agreement and the Note A
Amendments. The Guarantor does hereby confirm, ratify and reaffirm the
obligations contained in the Guaranty Agreement, as amended hereby. The
Guarantor does further confirm that at the present time it has no right of
set-off, counterclaim or defense to the obligations contained in the Guaranty
Agreement.
9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of any assignee or the respective heirs, executors,
administrators, successors and assigns of the parties hereto.
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10. COUNTERPARTS. This Modification Agreement may be executed in
multiple counterparts and/or by the use of multiple signature pages, each of
which shall constitute an original but all of which, taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto under seal and delivered as of the day and year first above written.
LENDER:
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Title: Vice President
Signed, sealed and delivered
in the presence of:
/s/ Xxxxx Xxxxxxxx
-----------------------
Unofficial Witness
/s/ Xxxxxxxx X. Xxxx
-----------------------
Notary Public
(Notarial Seal)
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METLIFE BANK, N.A.
By: Metropolitan Life Insurance Company, its Servicer
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Title: Vice President
Signed, sealed and delivered
in the presence of:
/s/ Xxxxx X. Xxxxxx
-----------------------
Unofficial Witness
/s/ Xxxxxxxx X. Xxxx
-----------------------
Notary Public
(Notarial Seal)
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BORROWER:
XXXXX ACP, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
[Seal]
Signed, sealed and delivered
in the presence of:
/s/ Xxxxxxx Xxxxxxx
-----------------------
Unofficial Witness
/s/ Xxx Xxxxx
-----------------------
Notary Public
(Notarial Seal)
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GUARANTOR:
XXXXX EQUITY, INC.,
a Florida corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
[Corporate Seal]
Signed, sealed and delivered
in the presence of:
/s/ Xxxxxxx Xxxxxxx
-----------------------
Unofficial Witness
/s/ Xxx Xxxxx
-----------------------
Notary Public
(Notarial Seal)
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EXHIBIT "B"
LEASING GUIDELINES
Grantee will require its approval of any proposed lease that is greater than
23,000 rentable square feet (i.e., greater than one full floor plate), and also
meets one of the following conditions (an "Approval Lease"):
(a) The Lease is not on a Standard Lease Form Previously approved by Grantee
with such modifications to such standard Lease Form as may customarily result
from negotiations with tenants; or
(b) The Lease has an Initial lease term which is greater than 12 years or less
than 3 years; or
(c) The Lease has an Initial lease rate which is less than $25.00 per square
foot (including expense reimbursement); or
(d) The Lease has a Free rent period which is greater than two months per year
of the Lease.
In addition, (i) Grantor will not enter into any leases without the prior
written consent of Grantee during any period in which an Event of Default exists
under the Loan Documents, and (ii) all leases shall be third party, arms-length
leases. Any lease modification which would cause a Lease to meet the conditions
of an Approval Lease shall also require Grantee's consent and shall fall within
the definition of Approval Lease hereunder. Grantee agrees that Grantee will
respond to requests for approvals of Leases (or amendments or terminations
thereof) as follows: Grantor will send an initial request for approval
indicating that Grantee's approval is required within ten (10) days and if
Grantor has not received Grantee's approval within the initial ten (10) day
period, then Grantor shall send a second request for approval stating that
Grantee's approval is required within five (5) days. Grantee agrees that
Grantee's approval under this paragraph shall be deemed to have been granted if
Grantee fails to respond with a grant or denial of approval within five (5) days
after Grantee receives the second written request for approval from Grantor as
long as both the first request for approval and the second request for approval
contains substantially the following statement in bold or capital letters
distinguishing it from the other text in the request: "THIS REQUEST FOR APPROVAL
IS MADE UNDER EXHIBIT B OF THE DEED TO SECURE DEBT AND YOUR APPROVAL WILL BE
DEEMED GRANTED IF YOU FAIL TO RESPOND WITHIN [Insert TEN (10) DAYS for first
notice and FIVE (5) DAYS for second notice]". If Grantor fails to send the
second five (5) day notice and no response is otherwise received from Grantee,
then the request will be deemed disapproved.
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